Arena v. Upstate Niagara Coop. Inc.

173 N.Y.S.3d 687

In the Matter of the Claim of Michael ARENA, Appellant,

v.UPSTATE NIAGARA COOPERATIVE INC. et al., Respondents.

Workers’ Compensation Board, Respondent.

533376

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: August 17, 2022

Decided and Entered: September 1, 2022

Vincent Criscuolo & Associates, PC, Rochester (Ryan W. Edwards of counsel), for appellant.

Hamberger & Weiss LLP, Rochester (Stephen P. Wyder Jr. of counsel), for Upstate Niagara Cooperative Inc. and another, respondents.

Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from a decision of the Workers’ Compensation Board, filed April 30, 2021, which ruled, among other things, that claimant violated Workers’ Compensation Law § 114–a and disqualified him from receiving future wage replacement benefits.

Claimant has an established claim for a work-related injury to his lower back that he sustained in January 2020. A February 2020 MRI showed evidence of a "[r]ight central L4–5 disc extrusion" that, in turn, impinged upon the right L5 nerve roots. Claimant was initially treated conservatively with medication and physical therapy, but he eventually received lumbar interlaminar epidurals in June 2020 and August 2020. Although the epidurals provided claimant with temporary relief and an October 2020 MRI evidenced some improvement, claimant nonetheless experienced a gradual return to his baseline level of low back pain. As a result, between late April 2020 and early August 2020, claimant consistently was classified as 100% disabled. In October 2020, a Workers’ Compensation Law Judge ordered the payment of certain awards, directed that the depositions of the evaluating and treating physicians be submitted by a date certain and continued the matter to receive evidence of a potential violation of Workers’ Compensation Law § 114–a.

After reviewing claimant's testimony and the surveillance videos provided by the employer and its workers’ compensation carrier, a Workers’ Compensation Law Judge found, among other things, that despite certain inconsistencies between claimant's testimony and the activities depicted on the surveillance videos, there was insufficient evidence of a Workers’ Compensation Law § 114–a violation. As a result, claimant was awarded benefits through January 14, 2021. Upon administrative review, the Workers’ Compensation Board reversed, concluding that claimant misrepresented his functional capabilities and finding sufficient evidence to support a violation of Workers’ Compensation Law § 114–a. The Board imposed a mandatory penalty from June 4, 2020 to January 14, 2021 (no compensable lost time) and also imposed a discretionary penalty permanently disqualifying claimant from receiving wage replacement benefits. Claimant appeals.

We affirm. "A claimant who, for the purpose of obtaining workers’ compensation benefits, knowingly makes a false statement or representation as to a material fact shall be disqualified from receiving any compensation directly attributable to such false statement or representation" ( Matter of Ali v. New York City Dept. of Corr., 205 A.D.3d 1247, 1248, 169 N.Y.S.3d 362 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of Nappi v. Verizon N.Y., 205 A.D.3d 1181, 1182, 169 N.Y.S.3d 156 [3d Dept. 2022] ). "A fact will be deemed material so long as it is significant or essential to the issue or matter at hand" ( Matter of Williams v. New York City Dept. of Corr., 188 A.D.3d 1382, 1383, 135 N.Y.S.3d 514 [3d Dept. 2020] [internal quotation marks, ellipsis and citations omitted]; see Matter of Ortiz v. Calvin Maintenance, 199 A.D.3d 1211, 1212, 158 N.Y.S.3d 312 [3d Dept. 2021] ). "Notably, feigning the extent of a disability or exaggerating symptoms and/or injuries have been found to constitute material false representations within the meaning of [ Workers’ Compensation Law § 114–a ]" ( Matter of Peck v. Donaldson Org., 191 A.D.3d 1078, 1079, 139 N.Y.S.3d 461 [3d Dept. 2021] [citations omitted]; accord Matter of Ringelberg v. John Mills Elec., Inc., 195 A.D.3d 1332, 1333, 150 N.Y.S.3d 156 [3d Dept. 2021] ; see Matter of Nappi v. Verizon N.Y., 205 A.D.3d at 1183, 169 N.Y.S.3d 156 ). "Whether a claimant has violated Workers’ Compensation Law § 114–a is within the province of the Board, which is the sole arbiter of witness credibility, and its decision will not be disturbed if supported by substantial evidence" ( Matter of Ali v. New York City Dept. of Corr., 205 A.D.3d at 1248–1249, 169 N.Y.S.3d 362 [internal quotation marks and citations omitted]; accord Matter of Giglia v. SUNY Buffalo–Union, 204 A.D.3d 1287, 1288, 167 N.Y.S.3d 577 [3d Dept. 2022] ). Indeed, "it is not the role of this Court to second-guess the Board's resolution of factual and credibility issues, and the mere fact that there may be evidence in the record to support contrary conclusions is of no moment" ( Matter of Gibson v. Carrier Corp., 307 A.D.2d 616, 618, 762 N.Y.S.2d 183 [3d Dept. 2003] ; see Matter of Little v. Gaines Elec. Contr., Inc., 36 A.D.3d 1056, 1057, 828 N.Y.S.2d 636 [3d Dept. 2007] ). Finally, with respect to the issue of penalty, "in addition to rescinding any workers’ compensation benefits already paid, the Board may – as an exercise of its discretion – disqualify a claimant from receiving future benefits" ( Matter of Ali v. New York City Dept. of Corr., 205 A.D.3d at 1249, 169 N.Y.S.3d 362 ; see Matter of Nappi v. Verizon N.Y., 205 A.D.3d at 1183, 169 N.Y.S.3d 156 ).

Here, the carrier presented video surveillance of claimant taken between May 21, 2020 and July 30, 2020 – a period of time during which claimant was deemed to be 100% disabled. The videos depict claimant engaged in, among other things, a variety of gardening activities, including using a post hole digger, shovel, push broom and reciprocating saw, carrying a bag of mulch, disposing of shrubbery, moving large landscaping...