| Matter of Poli v Taconic Correctional Facility |
| 2011 NY Slip Op 03171 [83 AD3d 1339] |
| April 21, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of John R. Poli,Appellant, v Taconic Correctional Facility et al., Respondents. Workers' CompensationBoard, Respondent. |
—[*1] Rudolph Rosa DiSant, New York City, for Taconic Correctional Facility and another,respondents.
Kavanagh, J. Appeal from a decision of the Workers' Compensation Board, filed March 4,2010, which ruled that claimant violated Workers' Compensation Law § 114-a anddisqualified him from receiving future wage replacement benefits.
Claimant, a correction officer, sought workers' compensation benefits in October 2007, afterfalling at work and allegedly injuring his lower back, shoulder, neck, arms and legs. Afterclaimant testified that he had suffered a non-work-related injury to his back in 2006, theemployer's workers' compensation carrier raised the issue of the veracity of the medical historyprovided by claimant to both his own treating physician and the carrier's independent medicalexaminer regarding the prior 2006 injury. Following hearings, the Workers' Compensation LawJudge determined, among other things, that claimant had violated Workers' Compensation Law§ 114-a and barred him from receiving future wage replacement benefits. On review, theWorkers' Compensation Board modified this determination, finding that the carrier's failure totimely submit a patient intake form filled out by claimant in conjunction with the independentmedical examination precluded the Board from finding claimant in violation of Workers'Compensation Law § 114-a, and claimant was subsequently awarded benefits. The carrier'sapplication for full Board review was granted. On full Board review, the Board found that thepatient intake form had been timely filed by the carrier. It therefore rescinded its prior decisionand the award of benefits, and affirmed the finding of a Workers' Compensation Law §114-a violation and the imposition of the discretionary permanent disqualification from futurewage replacement benefits. Claimant now appeals.
We affirm. A determination by the Board that a claimant violated Workers' CompensationLaw § 114-a will not be disturbed if supported by substantial evidence (see Matter of Jacob v New York City Tr.Auth., 26 AD3d 631, 632 [2006]). Pursuant to Workers' Compensation Law §114-a (1), a claimant may be disqualified from receiving compensation if he or she knowinglymakes a false statement or representation concerning a material fact. Here, the record establishesthat claimant suffered severe pain in his lower back in 2006 and that he sought medicaltreatment. An MRI taken in April 2006 found evidence of multiple herniated discs and claimanttestified that he was out of work for three months as a result of that injury. Claimant's treatingphysician for the 2007 work-related accident, upon whose report the Workers' CompensationLaw Judge found prima facie evidence of an injury to claimant's lumbar spine, testified that, onthe provided patient intake form, claimant denied having a previous history of injury to his back.The carrier's medical expert similarly testified that claimant denied having any prior history of aninjury to his back on the patient intake form. He further testified that he specifically askedclaimant during the examination if he had experienced prior back pain and claimant denied it,and his examination report also notes that claimant denied having a history of a similar conditionor accident. When questioned concerning these denials, claimant admitted that he had filled outthe intake forms, but stated that either he was not asked about prior back pain on the form or bythe examining physicians, or that he could not recall being asked about prior back pain. Thiscreated a credibility issue for the Board to resolve (see Matter of Hadzaj v Harvard Cleaning Serv., 77 AD3d 1000,1001 [2010], lv denied 16 NY3d 702 [2011]). Accordingly, in light of the testimony ofboth examining physicians, substantial evidence supports the Board's determination that claimantmade false representations regarding a material fact (see Matter of Jordan v Saratoga County Pub. Health Nurses, 45 AD3d1074, 1075 [2007]; Matter of Husakv New York City Tr. Auth., 40 AD3d 1249, 1250-1251 [2007]; Matter of Jacob vNew York City Tr. Auth., 26 AD3d at 632). Further, the Board provided a sufficientexplanation for its decision that the discretionary penalty of disqualification from wagereplacement benefits was warranted here (see Matter of Jordan v Saratoga County Pub.Health Nurses, 45 AD3d at 1075; Matter of Jacob v New York City Tr. Auth., 26AD3d at 632).
We have reviewed claimant's remaining arguments and find them to be without merit.
Peters, J.P., Spain, Stein and McCarthy, JJ., concur. Ordered that the decision is affirmed,without costs.