| Matter of Robbins v Mesivtha Tifereth Jerusalem |
| 2009 NY Slip Op 01739 [60 AD3d 1166] |
| March 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Matthew W. Robbins, Appellant, vMesivtha Tifereth Jerusalem et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Gregory J. Allen, State Insurance Fund, Albany (Tommasino S. Conte of counsel), forMesivtha Tifereth Jerusalem and another, respondents.
Mercure, J.P. Appeal from a decision of the Workers' Compensation Board, filed February23, 2007, which ruled that claimant violated Workers' Compensation Law § 114-a anddisqualified him from receiving future wage replacement benefits.
Claimant was formerly employed as a camp caretaker. In May 1999, he injured his backwhen he slipped on mud while carrying a 175-pound water pump, and a Workers' CompensationLaw Judge (hereinafter WCLJ) found him to be permanently, totally disabled as a result of theinjury. Subsequently, the workers' compensation carrier raised an issue of fraud and requestedthat claimant's benefits be suspended pursuant to Workers' Compensation Law § 114-a,asserting that claimant had misrepresented the degree of his disability. Following a hearing, aWCLJ found no violation of section 114-a, concluding that claimant remained permanently,totally disabled. Upon review, the Workers' Compensation Board reversed, finding that claimantintentionally misrepresented the degree of his disability in order to obtain compensation benefits.The Board imposed a mandatory disqualification penalty of $35,059.10, and permanentlydisqualified claimant from receiving any further wage replacement benefits pursuant to its [*2]discretionary authority. Claimant appeals, and we now affirm.
A determination that a claimant has violated Workers' Compensation Law § 114-a willbe upheld if it is supported by substantial evidence (see Matter of Losurdo v Asbestos Free, 1 NY3d 258, 266 [2003];Matter of Kestler v Old Castle CallananIndus., Inc., 46 AD3d 957, 958 [2007]). Here, the testimony of the independent medicalexaminer, Robert Zickel, fully supported the carrier's assertion that claimant misrepresented hisdaily activities. In particular, Zickel testified that claimant's activities depicted on surveillancevideos—which included footage of claimant reaching, turning and bending while washingan all terrain vehicle, walking a large dog without putting any weight on his cane, fishing andcasting in a stream while wearing hip boots, climbing a rocky embankment, carrying a backpackand crawling under a truck to repair it—indicated that any disability that he had was minoror mild. Zickel maintained that the depicted activities were "not consistent" with claimant'sdescription of his daily activities upon examination. Moreover, claimant's treating physician,Barry Scheinfeld, indicated that based upon claimant's representations, he was under theimpression that claimant was unable to perform the types of activities listed above. In our view,the Board's decision is supported by substantial evidence and, thus, it will not be disturbed(see Matter of Kestler v Old Castle Callanan Indus., Inc., 46 AD3d at 958; Matter of Dishaw v Midas Serv.Experts, 27 AD3d 921, 922 [2006]; Matter of Tomlin v L & B Contr. Indus.,307 AD2d 682, 683 [2003]; Matter of Phelps v Phelps, 277 AD2d 736, 738-739 [2000]).
Turning to claimant's remaining arguments, we reject his assertion that his due process rightswere violated. Claimant had ample opportunity to address the issue of whether he knowinglymisrepresented material facts during the hearing before the WCLJ and, in any event, " '[i]t lieswithin the Board's discretion to entertain arguments not raised before the [WCLJ]' " (Matterof Dishaw v Midas Serv. Experts, 27 AD3d at 921 [citation omitted]). Moreover, thepenalties imposed herein were not inappropriate. Given its finding that claimant violatedWorkers' Compensation Law § 114-a, "the Board was required to sanction claimant byrescinding the benefits which were directly attributable to such a misrepresentation" (Matter of Peguero v Halo's Rest., 24AD3d 986, 987 [2005]). Finally, the Board set forth an adequate explanation for itsimposition of a discretionary sanction, and its determination that disqualification is notdisproportionate to the offense is supported by substantial evidence (see Matter of Harabedian v New YorkHosp. Med. Ctr., 35 AD3d 915, 916 [2006]; Matter of Peguero v Halo's Rest.,24 AD3d at 987; Matter of Dieter vTrigen-Cinergy Solutions of Rochester, 14 AD3d 748, 749 [2005], appealdismissed 4 NY3d 881 [2005]).
Rose, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the decision is affirmed,without costs.