Claimant's Late Reporting and Concealing Prior Injuries gets Claim Thrown Out.

In a recent decision the New York Workers Compensation Board considered the case of a claimant who failed to report her alleged injury in a timely fashion, and then later concealed a prior injury to the same body part. The case is important because it demonstrates the necessity of performing a thorough investigation of prior medical claims brought by employees – including medical treatment for prior conditions which are not considered “compensable” under the Workers Compensation Law.

The Facts.

The claimant filed an Employee Claim Form (Form C–3) on June 4, 2009 alleging that while working as a home health aide she sustained an occupational injury. She claimed that beginning in May 2008, she began to feel a sharp pain in her left shoulder which was caused by repetitive lifting, stretching, and carrying for her patient. Every Form C– 3 (“Employees Claim Form”) requires that the claimant admit if they have a prior injury to the same body part. The claimant checked the box stating “no prior injuries or treatment.”

The claimant underwent left shoulder arthroscopic surgery in November 2008. In January 2009 she provided notice to the employer and a form C–2 (Employer’s Report of Work-Related Injury or Illness) was filed.

The employer denied the claim, controverting on multiple grounds – including that the claimant did not provide proper notice under section 18 of the Workers Compensation Law.

The claimant testified on her own behalf. She testified that she it worked as a home health aide for approximately 8 years. She testified that she had worked for the current employer about 1 1/2 years prior to claiming injury. She stated that she began to experience pain in her left shoulder beginning in May 2008.

The claimant denied having any prior problems with her shoulder. Specifically, she stated that “prior to May 2008 she never had a problem with her left shoulder.” The claimant admitted to applying for disability benefits in 2007, but stated it was “only for her back… my left shoulder had nothing to do with the 2007 disability claim.”

Further investigation performed by the employer revealed that the claimant had problems with her left shoulder beginning in 2007, documented in medical records and an MRI. Further, it was learned that the claimant had active medical treatment for her left shoulder in April 2008 – about one month prior to her alleged work-related incident.

The Law.

The Board had two issues to consider – (1) whether or not the claimant have reported her injury in a timely fashion; and (2) whether or not the claimant had committed a fraud by concealing the prior left shoulder problems.

The employer argued that the claimant had failed to report her alleged left shoulder injury in a timely fashion. The employer was able to show real prejudice – that the claimant had received left shoulder surgery before the incident was reported to the employer. The employer was able to demonstrate that this created a real prejudice for the employer, who was not able to have the claimant examined prior to the surgery taking place or close to the time of the alleged accident.

The employer also argued that the claim should be disallowed for fraud – because the claimant actively denied that she had a prior left shoulder problem and concealed that she was under active treatment for the shoulder just prior to the alleged date of loss.

The Decision.

The Board ruled in favor of the employer – finding that the claimant did not report her alleged injuries in a timely fashion. The Board also found that the employer was prejudiced by the claimant’s failure to report her injuries timely (waiting more than a year before filing her Employee Claim Form). On the issue of fraud – the Board did not rule on that issue because it ruled her claim disallowed based on the failure to report in a timely fashion.

Practical tips.

In this case, the employer had multiple grounds to deny this claim. The first ground was failure to provide notice of an injury within the time allowed by law.

The second ground was the employee’s clear fraud. The employer was able to obtain private health information (health insurance claim forms) filed by the claimant relating to prior left shoulder medical treatment received in the years prior to her alleged work-related accident. This combined with the claimants failure to report rendered her claim disallowed.

For employers who provide health insurance coverage to their employees (mandated in New York) the private health insurance claims file should be utilized in assessing occupational claims or claims in which the date of actual injury is controverted.

Case: In re HHH Home Care, decided January 31, 2013.

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com