Yolas v. NYCTA, 3rd Dept. 2/22/24 CV-22-1903
The 3rd Dept. issued a good decision on a Sec. 114-a violation. In this decision, the Court did not buy the “good days and bad days” argument to explain away why the petitioner was doing a lot more than he was telling the IME physician. In fact, the Court affirmed both mandatory and discretionary penalties for an occupational repetitive use injury, where the claimant told the IME doctor that he “retired” but was caught on film being more active, and then later admitted he was doing flooring work.
The Court did not find the fact that he told the IME doctor that he has some days better than others as persuasive to avoid the penalties of a willful misrepresentation, which here were both recission of prior awards and disqualification from future wage benefits.