| Matter of Church v Arrow Elec., Inc. |
| 2010 NY Slip Op 00025 [69 AD3d 983] |
| January 7, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Wesley Church, Appellant, v ArrowElectronic, Inc., et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Weiss, Wexler & Wornow, P.C., New York City (Matt Worth of counsel), for ArrowElectronic, Inc. and another, respondents.
Stein, J. Appeals (1) from a decision of the Workers' Compensation Board, filed July 2,2007, as amended by decision filed July 16, 2007, which, among other things, ruled that claimantviolated Workers' Compensation Law § 114-a and disqualified him from receiving futurewage replacement benefits, and (2) from a decision of said Board, filed May 1, 2008, whichdenied claimant's request for full Board review.
Claimant injured his back in April 2003 while lifting boxes in a warehouse owned by theemployer, underwent substantial back surgery in September 2003 and was awarded wagereplacement benefits in December 2003. In December 2005, after surveillance and independentmedical examinations of claimant, the workers' compensation carrier sought to suspendpayments to him on the ground that he had voluntarily removed himself from the labor market.In addition, outstanding issues included permanency and degree of disability. After hearingswere held, a Workers' Compensation Law Judge (hereinafter WCLJ) found claimant to bepermanently partially disabled and awarded him payments of $166.53 per week.
The workers' compensation carrier applied for review by a panel of the Workers' [*2]Compensation Board. Based upon its determination that claimant"knowingly made false statements and representations as to a material fact for the purpose ofinfluencing the determination of workers' compensation benefits in violation of [Workers'Compensation Law] § 114-a," the Board rescinded the benefits awarded to claimant forthe period from April 19, 2005 to May 18, 2006 and disqualified him from future receipt of wagereplacement benefits from May 18, 2006 onward.[FN1]Claimant's subsequent application for review by the full Board was denied. Claimant nowappeals both from the Board's decision reversing the WCLJ[FN2]and from the denial of his application for full Board review.[FN3]
Contrary to claimant's contention, we find that the Board's determination was supported bysubstantial evidence. Workers' Compensation Law § 114-a (1) provides that a claimantwill be disqualified from receiving compensation attributable to a false statement orrepresentation of a material fact made for the purpose of obtaining wage replacement benefits.Any compensation already paid to a claimant which is "directly attributable" to a claimant'smisrepresentations must be rescinded by the Board (Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265 [2003]). TheBoard also has the discretionary authority to disqualify the claimant from receiving any futurewage compensation benefits regardless of "whether or not the claimant is subject to themandatory penalty" (id. at 265-266), even if the claimant has suffered a compensableinjury (see id. at 266; Matter ofLopresti v Washington Mills, 23 AD3d 725, 726 [2005]). In addition, the Board maysubject the claimant to an additional penalty up to the amount directly attributable to the falsestatement or representation (see Workers' Compensation Law § 114-a [1]).
Here, claimant testified in a hearing before the WCLJ that, due to pain in his leg resultingfrom his back injury, he walked with a limp "[m]ost of the time" and that his activities wereextremely limited. He further testified that he could "lift a little," but that his pain wasaggravated by sitting, lifting and bending. On the other hand, the carrier's examining physiciantestified that claimant "was only moderately cooperative and gave a fair effort" at his exam. Hefurther testified that claimant appeared to be magnifying his symptoms and complained of morepain than the physician would have expected based on his objective findings. Additionally, at the[*3]time of examination, the physician noted that claimantwalked "with a severe antalgic gait and a limp of his right leg," but then observed him walkingthrough the parking lot immediately after the examination with "only a trace of a limp" and amuch better gait. The carrier also submitted videotapes depicting, among other things,claimant—generally with a very slight limp—bending and picking up and swinginghis grandchildren. Claimant's attempts to explain the discrepancies between his representationsand the observations of the physician conducting the independent medical examination and thesurveillance video presented issues of credibility that the Board was entitled to resolve (see Matter of Hammes v SunrisePsychiatric Clinic, Inc., 66 AD3d 1252, 1252 [2009]). In our view, the Board'sdetermination that claimant was in violation of Workers' Compensation Law § 114-a issupported by substantial evidence and, thus, it will not be disturbed (see generally Matter ofLosurdo v Asbestos Free, 1 NY3d at 266; Matter of Robbins v Mesivtha Tifereth Jerusalem, 60 AD3d 1166,1167 [2009]; Matter of Phelps v Phelps, 277 AD2d 736, 738 [2000]).
Turning to the propriety of the sanctions imposed, while it is clear that the Board assessed amandatory penalty, we are unable to discern from the Board's decision "a link between the falsestatement or representation and the forfeited compensation to show that the compensation wasdirectly attributable to the false statement or representation" (Matter of McCormack v Eastport Manor Constr., 19 AD3d 826,828-829 [2005] [internal quotation marks omitted]). Thus, we must remit to the Board to furtherdevelop the underlying decision in this regard. However, we are unpersuaded by claimant'scontention that the disqualification from receiving future benefits was disproportionate to hisconduct, given the thorough explanation set forth by the Board in its assessment of thisdiscretionary penalty (see Matter of Hammes v Sunrise Psychiatric Clinic, Inc., 66 AD3dat 1253).
Cardona, P.J., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the decision filed July 2,2007 is modified, without costs, by vacating so much thereof as directed disqualification of allbenefits received by claimant between April 19, 2005 and May 18, 2006; matter remitted to theWorkers' Compensation Board for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed. Ordered that the decision filed May 1, 2008 is affirmed,without costs.
Footnote 1: The Board thereafter issued anamended decision, clarifying that it had rescinded the WCLJ's decision only insofar as itawarded claimant benefits.
Footnote 2: We note that claimant failed toappeal from the Board's amended decision and the notice of appeal contains various errors,including the date of the notice and one instance in which it names someone other than claimant.Inasmuch as the amended decision is substantially the same as the original decision and there hasbeen no claim of prejudice, we will disregard these failures as defects of form (see CPLR5520 [c]) and address the merits of claimant's appeal (see Matter of Deraway v Bulk Stor., Inc., 51 AD3d 1313, 1314 n 1[2008]; Matter of Barker v BuffaloColor Corp., 32 AD3d 1138, 1139 [2006]).
Footnote 3: Claimant's appeal from thedenial of his application for full Board review is deemed abandoned due to his failure to raiseany issues with respect thereto in his brief on appeal (see Matter of Jones v Gardner Motors, 45 AD3d 1125, 1125 n[2007]).