| Matter of Jordan v Saratoga County Pub. Health Nurses |
| 2007 NY Slip Op 08806 [45 AD3d 1074] |
| November 15, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Diana Jordan, Appellant, v SaratogaCounty Public Health Nurses et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Stockton, Barker & Mead, Albany (Leith Carole Ramsey of counsel), for Saratoga CountyPublic Health Nurses and another, respondents.
Peters, J. Appeal from a decision of the Workers' Compensation Board, filed March 22,2006, which ruled that claimant violated Workers' Compensation Law § 114-a anddisqualified her from receiving future wage replacement benefits.
Claimant, a registered nurse, sustained work-related injuries to her back, coccyx and leftwrist in March 2001. She collected workers' compensation benefits between March 2001 andMarch 2005, until benefits were suspended due to a finding, by the Workers' Compensation LawJudge (hereinafter WCLJ), that claimant made a false representation in violation of Workers'Compensation Law § 114-a. After a review by the Workers' Compensation Board, thefinding of fraud was sustained and the discretionary penalty imposed by the WCLJ was modifiedto a permanent disqualification from the receipt of further indemnity benefits. Claimant appealsand we affirm.
The Board's determination is based upon substantial evidence and must be upheld (see Matter of Henry v Bass-Masci, 32AD3d 635, 636 [2006]; Matter ofLopresti v Washington [*2]Mills, 23 AD3d 725, 726[2005]; Matter of Phelps v Phelps, 277 AD2d 736, 738 [2000]). Pursuant to Workers'Compensation Law § 114-a, a claimant may be disqualified from receiving compensationand may be subject to disqualification if he or she knowingly makes a false statement orrepresentation as to a material fact for the purpose of obtaining compensation or influencing adetermination regarding the payment of compensation (see Workers' Compensation Law§ 114-a [1]). The Court of Appeals has found that "a fact is material . . . solong as it is 'significant or essential to the issue or matter at hand'; therefore, a false statementneed not affect the dollar value of an award to be material" (Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265 [2003],quoting Black's Law Dictionary 611 [7th ed 1999]; see Matter of Lopresti v WashingtonMills, 23 AD3d at 726).
Here, claimant received medical treatment for prior injuries to her back and neck in 1996 and1997. Regarding the 1997 injury, she was prescribed medication, a course of physical therapyand was absent from work for a six-week period while receiving workers' compensation benefits.Despite being specifically questioned concerning previous injuries to her neck and back inconnection with her current injury, claimant failed to inform any of the numerous medicalprofessionals that she saw in connection with this injury that she had suffered from priorwork-related injuries to her neck and back (see Matter of Husak v New York City Tr. Auth., 40 AD3d 1249,1249-1250 [2007]; Matter of Bowes vGulinello's Town & Country, 3 AD3d 805, 806 [2004]). Although claimant testified asto her reasons for such "omission," her testimony presented a credibility issue to be resolved bythe Board (see Matter of Husak v New York City Tr. Auth., 40 AD3d at 1250; Matter of Jacob v New York City Tr.Auth., 26 AD3d 631, 632 [2006]). Seeing the omission as a false denial of a previousinjury to the injured area for which compensation is sought, we agree with the determination thatthe omission was not only significant but also material (see Matter of Losurdo v AsbestosFree, 1 NY3d at 265; Matter of Husak v New York City Tr. Auth., 40 AD3d at1249-1250).
Next addressing the Board's modification of the penalty imposed by the WCLJ, we find theBoard to have met its obligation to provide an explanation for its determination (see Matter ofLosurdo v Asbestos Free, 1 NY3d at 267; Matter of McCormack v Eastport Manor Constr., 19 AD3d 826,829 [2005]). As a discretionary penalty in the form of a permanent disqualification has beenupheld under similar circumstances (seee.g. Matter of Retz v Surpass Chem. Co., Inc., 39 AD3d 1037, 1039 [2007]; Matter of Harabedian v New York Hosp.Med. Ctr., 35 AD3d 915, 916 [2006]; Matter of Losurdo v Asbestos Free, Inc., 29 AD3d 1072, 1073[2006], lv denied 8 NY3d 805 [2007]), we cannot conclude that it was disproportionateto the underlying offense.
Crew III, J.P., Spain, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed,without costs.