| Matter of Kestler v Old Castle Callanan Indus., Inc. |
| 2007 NY Slip Op 09634 [46 AD3d 957] |
| December 6, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Ed Kestler, Appellant-Respondent, vOld Castle Callanan Industries, Inc., et al., Respondents-Appellants. Workers' CompensationBoard, Respondent. |
—[*1] E. Michael Ruberti, L.L.C., St. Simons Island, Georgia (E. Michael Ruberti of counsel), forrespondents-appellants. Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), forrespondent.
Carpinello, J. Cross appeals from a decision of the Workers' Compensation Board, filed July17, 2006, as amended by decision filed July 31, 2006, which ruled, among other things, thatclaimant violated Workers' Compensation Law § 114-a and disqualified him fromreceiving wage [*2]replacement benefits.
In 2003, claimant filed a claim for workers' compensation benefits alleging that he hadsustained injuries to his neck and back from regularly operating a front-end loader withmismatched tires. At an ensuing hearing, claimant testified that he had no back or neck problemsprior to his claimed work-related injuries, but the employer presented evidence of a history ofprior similar injuries. Ultimately, the Workers' Compensation Law Judge (hereinafter WCLJ)found, among other things, that claimant had not violated Workers' Compensation Law §114-a and that his injuries were causally related to his employment.
Upon review, the Workers' Compensation Board modified, determining that claimant hadviolated Workers' Compensation Law § 114-a by his testimony at the hearing and by hisfailure to disclose his medical history to his treating physicians. As a result, the Boarddisqualified him from receiving workers' compensation wage replacement benefits. First, theBoard imposed a mandatory penalty covering the period June 23, 2004 to July 19, 2005.Moreover, it imposed a discretionary penalty covering the period July 19, 2005 forward. TheBoard, however, did authorize continuing medical benefits and, without specifically addressingcausation, otherwise affirmed the WCLJ's decision. Both parties now appeal.
The Board's determination that claimant violated Workers' Compensation Law § 114-awill be upheld so long as it is supported by substantial evidence (see Matter of Husak v New York City Tr.Auth., 40 AD3d 1249, 1250 [2007]; Matter of Bottieri v New York State Dept. of Taxation & Fin., 27 AD3d1035, 1036 [2006]). A review of the record reveals the existence of such evidence. Claimanttestified before the WCLJ that he never had any neck or back problems prior to the 2003 claim.Additionally, both the testimony and the medical reports of claimant's treating physiciansindicate that claimant represented to them that he had not sustained any prior similar injuries.However, the record reveals that between 1996 and 2001, claimant documented in variousmedical questionnaires that he had a history of back and neck pain due to previous car accidents,a skiing injury and a work-related head injury. Claimant also informed the independent medicalexaminer in 2004 that he had been receiving chiropractic treatments on his neck and back for thepast five years. Accordingly, we will not disturb the Board's finding of a violation of Worker'sCompensation Law § 114-a.
With respect to the employer's challenge to the Board's implicit affirmance of the WCLJ'sdetermination that claimant's injuries were causally related to his employment thereby entitlinghim to continued medical benefits, we note simply that this determination is supported by therequisite substantial evidence of some medical testimony of causality (see e.g. Matter of Hargraves v DormannLib., 18 AD3d 1105, 1106 [2005]; compare Matter of Ceselka v KingsboroughCommunity Coll., 281 AD2d 842, 842-843 [2001]; Matter of Estate of Matusko vKennedy Valve Mfg. Co., 296 AD2d 726, 728 [2002], lv denied 99 NY2d 504[2002]), notwithstanding claimant's false representations.
Cardona, P.J., Crew III, Peters and Spain, JJ., concur. Ordered that the decision is affirmed,without costs.