Credibility leads to partial claim denial, but court OKs future benefits

A New York appellate court upheld the denial of a worker’s claim for injuries from a fall based on a lack of credibility, but it found his misconduct was not so egregious as to warrant a total loss of future benefits.

Alastair Kennedy worked for 3rd Track Constructors as an operating engineer. He suffered injuries October 2019 when he slipped and fell into a hole at a job site, according to Matter of Kennedy v. 3rd Track Constructors, filed Thursday in the state’s Appellate Division’s 3rd Department.

According to coworkers and photographs, Mr. Kennedy exaggerated the size of the hole, and the extent of his injuries, as he was able to get himself up after falling.

Mr. Kennedy, who underwent two surgeries in 2020, filed a claim for workers compensation benefits alleging injuries to his left shoulder, foot and ankle. The employer’s insurer accepted liability for the injuries to Kennedy’s left foot and ankle but contested the alleged neck and left shoulder injuries. The insurer also raised the possibility that Mr. Kennedy had violated state workers comp law that allows a worker to be barred from receiving future benefits if a worker makes false statements.

A workers compensation law judge found Mr. Kennedy was not a credible witness and rejected his claim of injury to his neck.

The Workers’ Compensation Board also disallowed the claims for left shoulder and neck injuries and upheld the loss of future benefits. The Appellate Division’s 3rd Department agreed, stating that Mr. Kennedy was inconsistent in reporting prior injuries and absent “a truthful medical history,” the medical opinions did not support Mr. Kennedy’s claims of injury.

The court went on to find Mr. Kennedy had also violated state law by exaggerating his injuries. However, the court said the total loss of future wage loss benefits is disproportionate to the offense, and so it reversed the penalty.

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