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Acknowledging that the New York Workers’ Compensation Board had broad latitude in determining whether an employee had violated N.Y. Workers’ Comp. Law § 114-a—for example, by failing to disclose post-injury earnings—but also noting that a decision to bar a claimant permanently from receiving indemnity benefits must be supported by the record, a New York appellate court held a permanent bar was improper, based upon the evidence in the record. The court observed that while the Board had stated it was “common practice” for a WCLJ to direct a claimant to report any return to work, there was no evidence that such a direction had been given the claimant here. Moreover, while the Board based its disqualification decision on videotape surveillance, the court pointed to evidence that the claimant had received an epidural block just prior to the videotape. The claimant had reported such injections alleviated 80 percent of his pain. Based on these circumstances, there was inadequate support for the Board’s permanent disqualification decision.
Thomas A. Robinson, J.D., the co-Editor-in-Chief and Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law(LexisNexis).
LexisNexis Online Subscribers: Citations below link to Lexis Advance.
See Matter of Young v. Acranom Masonary, 2021 N.Y. App. Div. LEXIS 2675 (3d Dept. Apr. 29, 2021)
See generally Larson’s Workers’ Compensation Law, § 39.03.
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law
For a more detailed discussion of the case, see
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