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 State: NY

 

Home Renovation Project Didn't Merit Forfeiture of Worker's Benefits

 

A transit worker's failure to report his activities in renovating a residential property while he was collecting temporary disability benefits was not a violation of Workers' Compensation Section 114-a (1), a New York appellate court ruled.

 

Case: Borgal v. Rochester-Genesee Regional Transportation Authority, No. 515849, 07/11/2013, published.

 

Facts: John Borgal worked for the Rochester-Genesee Regional Transportation Authority. He suffered work-related injuries to his left shoulder and right hand in January 2009.

 

Borgal continued working until July 2009, when he underwent surgery on his shoulder. He then began collecting temporary disability benefits.

 

His self-insured employer then sought to disqualify Borgal from receiving benefits based on its surveillance of Borgal after his surgery.

 

The surveillance videos captured Borgal renovating a residential property and argued that this activity should have been reported as "work."

 

Borgal testified that for the past eight years, he had been engaged in buying residential real estate property, renovating it and then selling it for a profit. He purchased a residential property in November 2009 and, with the help of others, he renovated it.

 

Borgal admitted to participating in the performance of small tasks such as carrying out little items of trash, doing touch-up scraping and painting, light carpentry work and installing two lights in the garage. However, he insisted that the majority of the renovation work was completed by family members and hired contractors.

 

Procedural History: A workers' compensation law judge concluded that Borgal's activities were not "work" which had to be reported to his employer, and the Workers' Compensation Board agreed.

 

Analysis: The Appellate Division's 3rd Department noted that the surveillance video recordings did not contradict Borgal's testimony, since they primarily showed Borgal undertaking only light errands and tasks not directly related to the renovation.

 

The court acknowledged that the evidence could have led to a different conclusion than the one reached by the judge and the board, but the court said substantial evidence supported their conclusion that Borgal's failure to report his minimal renovation-related activities did not constitute a violation of Workers' Compensation Section 114-a (1).

 

Disposition: Affirmed.

 

To read the decision, click here.

 

Source: WorkCompCentral

 

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