Man loses workers' comp benefits after not-so-total disability caught on camera
Video surveillance revealed a man participating in activities that did not square up with his alleged total disability.
The Appellate Division of the Supreme Court of New York affirmed a judgment issued by the Workers Compensation Board (Board) that a New York man claiming to be completely disabled have his benefits revoked and be “permanently disqualif[ied]…from receiving wage replacement benefits.” The case is Arena v. Upstate Niagara Coop., 2022 N.Y. App. Div. LEXIS 4995 (N.Y. App. Div. 2022).
Michael Arena suffered a work-related back injury in January 2020, which was confirmed by an MRI the next month. His initial treatment plan relied on medication and physical therapy, but his pain worsened, and he received two “lumbar interlaminar epidurals.” From April to August, Arena was completely disabled.
His employer, Upstate Niagara Cooperative Inc., suspected Arena was fudging the details of his injuries and hired an insurance investigator. Video surveillance revealed Arena participating in activities that did not square up with his alleged total disability. He was seen digging in his garden, engaging in outdoor activities that required bending and kneeling at angles up to 90 degrees, and carrying a large case of beer in each hand, among other activities.
Upstate Niagara brought the videos to the attention of a workers’ compensation judge and said Arena had made material misrepresentations to obtain better benefits in violation of state law. Though some of the activities were consistent with what medical professionals said Arena could do, many of them were well outside the balance of “good days and bad days” that could have been expected for Arena’s recovery.
Arena claimed his work in the garden had been in support of his wife, who had performed nearly all of the physical labor. Regarding other observed activities, Arena said he had merely been demonstrating how to use certain tools, such as a post hole digger and could not recall whether he had used other lawn equipment. The workers’ compensation judge ruled the inconsistencies, though present, were not strong enough to constitute a violation and awarded Arena benefits through January 2021.
Upstate Niagara appealed to the Board, which looked at the videos and found “sufficient evidence to support” Upstate Niagara’s claims that Arena had misrepresented his injuries. The Board issued two penalties against Arena: a mandatory penalty revoking Arena’s benefits, finding there was no compensable lost time from June 2020 to January 2021, and a second, “discretionary penalty permanently disqualifying [Arena] from receiving wage replacement benefits.”
Arena appealed to the courts. The court pointed to specific instances seen in the videos that belied Arena’s testimony: carrying bags of mulch, removing shrubs from his yard, and actually using the post hole digger he claimed to have only demonstrated. The court found that the Board’s decision, including the penalties imposed, were supported by “substantial evidence” in the case record and affirmed the judgment against Arena.
FC&S editor’s note: Video evidence is hard to dispute. Arena claimed, and no one contradicted, that his doctors “advised [him] to remain as active as he could” during recovery.
However, as both the Board and the court in this case pointed out, there is a clear line between activities undertaken during recovery and everyday activities. Special investigative units routinely use surveillance to prove insurance fraud.
Related: