The question comes up in almost every consultation, usually near the end and usually quietly. Can I do a little work? My brother needs help on weekends. I have a side job I have had for years. Nobody is paying me much.

The honest answer is that this is the single most dangerous area of a New York compensation claim, and the danger is not the work itself. It is what you say about it.

What the statute actually says

Workers’ Compensation Law § 114-a provides that a claimant who knowingly makes a false statement or representation as to a material fact, for the purpose of obtaining compensation or influencing a determination regarding a payment, is disqualified from receiving any compensation directly attributable to that false statement.

Notice what the statute does not say. It does not say you may not work. It does not say working ends your claim. What it penalizes is the false statement.

That distinction is the whole subject. Working while your claim is open raises questions about your earnings and your degree of disability, and those questions have answers. Concealing the work is a different problem with far worse consequences.

Two penalties, not one

Section 114-a carries two distinct penalties, and people routinely hear about the first without hearing about the second.

The mandatory penalty takes back the compensation directly attributable to the false statement. If a misrepresentation produced four months of benefits you should not have received, those four months come back.

The discretionary penalty is the one that ends cases. On top of the mandatory penalty, the Board may disqualify a claimant from future wage-replacement benefits entirely. In Matter of Losurdo v Asbestos Free, decided by the Court of Appeals in 2003, the Court confirmed that the Board may impose the discretionary penalty whether or not the mandatory penalty applies — that is, regardless of whether the false statement actually got the claimant any money.

Sit with that. A statement that gained you nothing at all can still cost you every future indemnity payment in the case.

Losurdo did put a limit on it: the discretionary penalty must not be disproportionate to the offense, and the Board has to explain its reasoning rather than imposing blanket disqualification automatically. That proportionality requirement is a genuine defense and it is argued in real cases. It is a much weaker position than never having made the statement.

What counts as a material fact

A fact is material when it is significant or essential to the issue at hand. In a compensation claim that sweeps in more than most people assume.

Whether you have been working, and what you earned. What you can physically do. Whether you had a prior injury to the same body part, and whether you treated for it. How the accident happened. What you told the doctor.

The reach of that last one catches people. A statement to the carrier’s independent medical examiner is squarely within the statute. A claimant who tells the examining doctor he cannot manage more than sedentary activity, and is then recorded pumping gas, walking normally and squatting without difficulty, has a § 114-a problem that the examination created.

Prior injuries are the other recurring trap, and they are rarely concealed on purpose. A questionnaire asks whether you ever hurt your back before. You had a few chiropractic visits eleven years ago after a car accident you barely remember, and you answer no. The carrier finds the records. What you experienced as forgetting, the carrier will present as concealment.

How carriers find out

They look, and the looking is neither rare nor expensive any more.

Surveillance is routine in claims involving significant exposure, and it is not limited to a single afternoon. Investigators film over multiple days and produce the footage at the hearing that contradicts the testimony. Social media is read, including accounts belonging to family members and including posts by organizations you are involved with. Recent decisions have turned on a claimant’s volunteer activity documented publicly by the organization itself, and on delivery work recorded across a single day in volumes no one claiming total disability could explain.

Prior medical records are obtained and read closely. Databases show prior claims. None of this requires suspicion of anything in particular; on a claim of any size it is simply what gets done.

What is actually at risk

One point worth stating plainly, because the fear around this subject usually overshoots.

Section 114-a operates on compensation — the wage-replacement money. Medical treatment for an established injury is governed by different provisions of the statute and is not what § 114-a disqualifies. A finding under § 114-a is severe and can end the indemnity side of a case permanently, but it is not correct to say it erases the claim in every respect.

That is a meaningful distinction if you are afraid you have already made a mistake. It is not a reason to relax about the statute.

How to stay out of this entirely

The protective behavior here is simple and almost entirely within your control.

  • Report any work, of any kind, in any amount, to your attorney. Paid in cash, helping a relative, a few hours here and there — report it. Working does not automatically end a claim. Hiding it can.
  • Do not send a carrier questionnaire back without having it reviewed first. These forms are written to produce exactly the answers that become § 114-a findings later.
  • If you genuinely do not remember whether you had a prior injury or treatment, say that you do not remember. That is an honest answer. A confident no that turns out to be wrong is the problem.
  • Describe your limitations the way they actually are, including the good days. Nobody is hurt every minute of every day, and a description that admits no variation is the one surveillance contradicts.
  • Answer the independent medical examiner the same way you answer your own doctor. That examination is evidence.
  • Assume anything posted publicly will be seen, including by people who did not post it.

Frequently asked questions

Can I work at all while my claim is open?

It depends on your degree of disability and what the work involves, and it has to be reported and accounted for. Returning to work at reduced earnings is an ordinary situation the statute contemplates and handles. The answer is a conversation, not an automatic no — but it has to be a conversation that happens before the work, not after the carrier finds out.

What if I made a mistake on a form months ago?

Raise it with your attorney now. A correction you volunteer is a categorically different thing from one the carrier produces at a hearing, both in how it is argued and in how the Board tends to see it. Waiting does not improve this.

I did not lie, I just forgot. Does that still count?

The statute requires that the statement be made knowingly, which matters and is litigated. But you should expect the carrier to characterize an innocent omission as a knowing one, and you will be arguing about your own state of mind years after the fact with the document in front of the judge. Disclosure avoids the argument.

Does volunteering count as work?

Unpaid activity is not earnings, but that is not the end of it. If you are telling the Board you cannot stand for twenty minutes while an organization publicly documents your participation in strenuous activity, the problem is the inconsistency, not the paycheck. Tell your attorney what you do with your time.

The carrier says I committed fraud. Is my case over?

An allegation is not a finding. The carrier has to prove the statement was false, material and knowing, and the discretionary penalty has to be proportionate to the offense with the Board explaining why. These are contested at hearings and carriers do not always win them. Do not concede the case because a letter says fraud.

Can I talk to you about this without committing to anything?

Yes, and this is a subject where that conversation is worth having early. Consultations are free and there is no obligation.

Talk to us

If you are working, thinking about working, or worried about something you already put on a form, call the office before it becomes a hearing issue. Most of what turns into a § 114-a finding could have been handled in a five-minute phone call at the right moment.

Consultations are free. In a workers’ compensation case there is nothing to pay up front — the fee is applied for and approved by the Workers’ Compensation Board out of the award.

The information on this page is general and is not legal advice. Reading it does not create an attorney-client relationship.

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