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Caught renovating house while on disability: Workers’ comp benefits disputed

Was surveillance video of a worker renovating a house enough to get his workers’ comp disability benefits thrown out?

John Borgal worked for the Rochester-Genesee Regional Transportation Authority (RGRTA) as a bus driver. In January 2009, he suffered work-related injuries to his left shoulder and right hand. After surgery in July 2009 to repair a torn rotator cuff in his left shoulder, he received workers’ compensation benefits for temporary disability.

Some time after the surgery, Borgal experienced increasing pain, and an MRI performed in August 2010 showed his rotator cuff was torn again.

At a hearing in June 2010, the RGRTA, which is self-insured, revealed it carried out surveillance on Borgal. It had video of him helping with the renovation of a house he’d bought. The RGRTA raised the issue of whether Borgal violated New York state’s Workers’ Compensation Law by working while he was receiving temporary disability benefits.

A Workers’ Compensation Law Judge (WCLJ) ruled in Borgal’s favor, and that ruling was upheld by the Workers’ Compensation Board. The RGRTA appealed to a New York state court.

Was he medically cleared for these activities?

The RGRTA argued Borgal misrepresented a fact by stating in two comp benefit questionnaires that he didn’t work following his shoulder surgery.

The surveillance video showed Borgal:

  • carrying small items of trash
  • doing touch-up scraping and painting
  • performing light carpentry work, and
  • installing two lights in the garage.

Borgal admitted that, for the past eight years, he would buy residential properties, renovate them and then sell them at a profit (what’s known as “flipping” a property). He admitted participating in certain activities at his most recent purchase, but he said they were small tasks. Borgal said the majority of the renovation work was completed by family and hired contractors.

The video didn’t contradict Borgal’s statement. It showed him performing light tasks.

Besides that, Borgal’s son lived at the house in question. Borgal never put it on the market for sale.

Therefore, the appeals court found the comp board’s decision that Borgal hadn’t violated comp law by participating in light renovation activities while he was on disability should stand.

The RGRTA also argued Borgal misrepresented the degree of his disability to his doctor.

His doctor testified that Borgal was restricted from performing various basic physical activities for the first 12 weeks after his surgery, and there was no evidence he disobeyed that medical order.

The doctor said there were no restrictions on daily-life activities after 12 weeks. However, Borgal was totally disabled from performing certain duties as a bus driver. His physical therapist said he shouldn’t perform extreme reaching, quick unguarded movement or heavy lifting.

The appeals court sided with Borgal on this matter, also. His workers’ comp disability payments weren’t revoked.

What do you think about the court’s decision? Let us know in the comments below.

(Borgal v. Rochester-Genesee Regional Trans. Auth., Appellate Div. of the Supreme Court of NY, No.515849, 7/11/13)

For more information on workers’ compensation, see Safety News Alert’s Recommended Safety Links page.

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  1. JHSchwelm CTSP says:

    The employer can do what they wish provided the employee did not have a contract. NYS is an AT WILL employment state like so many others. Here is a definition of that term to assist all in their opinion process…
    Q: Can you fire an employee without due cause?
    A: Yes. New York State is an “employment-at-will,” state. If there is no contract to restrict firing (like a collective bargaining agreement) an employer has the right to discharge an employee at any time for any reason. This also protects the employee’s right to resign. An employer may fire an employee for “no reason.” An employer may also fire an employee for a reason that might seem arbitrary and unfair. The employee is equally free to quit at any time without needing to explain or defend that decision.
    There are a few exceptions to “employment-at-will.” The most significant of these are laws, enforced by the New York State Division of Human Rights, which prohibit discrimination based on:
    National origin
    Sexual orientation
    Marital status
    For more information about how the New York State Division of Human Rights proceeds against unlawful forms of discrimination, go to:

    So, I think they can do what they like. A lot of folks are not aware of this little caviat in NYS.

  2. Chris Breedlove says:

    Bottom line……if you can work, you shouldn’t get disibility, period.

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