At first, this employer paid an employee’s workers’ comp claim – doctors had diagnosed injuries. But after seeing a video of when the injury was alleged to have taken place, the employer changed its mind. How did a court rule?
Oneshia Portlette was a bus driver for the Manhattan & Bronx Surface Transportation Operating Authority (MaBSTOA). She said on Feb. 3, 2015, she was injured when another bus backed into the one in which she was standing, preparing to start her shift.
Portlette sought medical treatment and was diagnosed by her treating chiropractor with sciatica; lumbar disc displacement; muscle weakness; joint dysfunction; neck, throat and lumbar strain/sprain; lumbar disc protrusion; and left shoulder pain.
MaBSTOA paid workers’ comp benefits, and its consulting chiropractor examined Portlette and diagnosed her with lumbar syndrome.
However, the employer suspended payments as of July 1, 2015, after receiving video recordings of the incident from the bus camera and from surveillance of Portlette’s daily activities. The video showed that her account of the incident and her injuries had been inaccurate.
MaBSTOA also raised the issue of workers’ comp fraud.
After viewing the video, the employer’s consulting chiropractor revised his opinion, concluding Portlette hadn’t suffered a work-related injury.
A hearing was held before a Workers’ Compensation Law Judge (WCLJ). Portlette testified she had suffered injuries while standing, doing paperwork while leaning over the fare box at the front of the bus. Her claim submitted to the Workers’ Compensation Board differed – it said she had been “walking and inspecting the bus” when it was hit.
The WCLJ credited the testimony of MaBSTOA’s chiropractor and also found Portlette failed to submit competent medical evidence that her injuries were work-related. The judge disallowed her claim for back, neck and shoulder injuries and found, based on the video evidence, that Portlette knowingly made false representations in violation of workers’ comp law.
The Worker’s Compensation Board affirmed the judge’s decision. Portlette took her case to a state court.
Portlette argued the Board shouldn’t have considered testimony from the MaBSTOA’s chiropractor because the employer never filed a notice of controversy. The court noted Portlette never specifically argued before the Board that the employer’s proof shouldn’t be admitted as evidence due to its failure to timely file a notice of controversy. Since that was the case, the Board didn’t abuse its discretion, the court ruled.
The court said the Board found “good cause” for the employer’s failure to file a written notice of controversy – specifically Portlette’s misrepresentation of the incident and the cause and extent of her injuries.
Portlette also argued before the court that the video was admitted without proper authentication. Again, the court noted this objection wasn’t raised during the workers’ comp hearing, so it couldn’t rule on it.
The court found no error with the Board’s decision. The decision was affirmed.
(Portlette v. Manhattan & Bronx Surface Tr. Operating Auth., NY Appellate Division, Third Department, No. 01980, 3/22/18)