Barros v. John P. Picone, Inc.

188 A.D.3d 1397

135 N.Y.S.3d 506

In the Matter of the Claim of Anibal BARROS, Claimant,

v.JOHN P. PICONE, INC., et al., Appellants.

Workers' Compensation Board, Respondent.

530481

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

Calendar Date: October 22, 2020

Decided and Entered: November 12, 2020

Lois LLC, New York City (Noah Pollack of counsel), for appellants.

Letitia James, Attorney General, New York City (Donya Fernandez of counsel), for respondent.

Before: Garry, P.J., Clark, Devine, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from a decision of the Workers' Compensation Board, filed June 7, 2019, which ruled, among other things, that claimant violated Workers' Compensation Law § 114–a.

Claimant, a cement mason, filed a claim for workers' compensation benefits following an accident on March 9, 2018 in which he was knocked off scaffolding and fell onto train tracks. Claimant has established claims for injuries to his lumbar spine and right shoulder, later amended to add a contusion to his right leg. He received medical care and wage replacement benefits from March 10, 2018 through July 31, 2018, when he had shoulder surgery and was classified as temporarily totally disabled. The employer and its workers' compensation carrier (hereinafter collectively referred to as the carrier) thereafter produced surveillance videos taken by an investigator depicting claimant's activities over the course of 10 days between April and July 2018 and raised the issue of whether claimant had misrepresented the extent of his medical impairment in violation of Workers' Compensation Law § 114–a.

Following hearings at which claimant, the investigator and several physicians testified, a Workers' Compensation Law Judge (hereinafter WCLJ) concluded, among other things, that claimant had not violated Workers' Compensation Law § 114–a and directed awards at a temporary partial disability rate (75%) for the period of May 17, 2018 through July 31, 2018, and from December 11, 2018 through January 30, 2019(25%).¹ On the carrier's administrative appeal, the Workers' Compensation Board modified, finding that claimant had violated Workers' Compensation Law § 114–a by misrepresenting his physical condition as totally disabled to physicians and when he testified. The Board imposed a mandatory penalty disqualifying claimant from receiving benefits for the period of May 17, 2018 through July 31, 2018 (for a total of 10.6 weeks), and imposed a discretionary penalty equal to the amount of the mandatory penalty, to be deducted from future award payments. The carrier appeals.²

We affirm. Workers' Compensation Law § 114–a (1) provides that a claimant who, for the purpose of obtaining workers' compensation benefits or to influence any determination related to payment thereof, "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" (see Matter of Roberts v. Eastman Kodak Co., 185 A.D.3d 1124, 1125, 126 N.Y.S.3d 805 [2020] ; see also Matter of Losurdo v. Asbestos Free, 1 N.Y.3d 258, 265, 771 N.Y.S.2d 58, 803 N.E.2d 379 [2003] ). In addition to a mandatory penalty, this provision grants the Board the authority, in its discretion, to "disqualif[y]" a claimant from receiving future benefits, which is the maximum penalty, or to impose "an additional penalty" up to the amount of the mandatory penalty ( Workers' Compensation Law § 114–a [1] ; see Matter of Losurdo v. Asbestos Free, 1 N.Y.3d at 265, 771 N.Y.S.2d 58, 803 N.E.2d 379 ; Matter of Restrepo v. Plaza Motors of Brooklyn Inc., 181 A.D.3d 1108, 1110, 121 N.Y.S.3d 420 [2020] ). "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 Bennett v. J–Track LLC, 182 A.D.3d 967, 969, 122 N.Y.S.3d 812 [2020] [internal quotation marks and citations omitted]; see Matter of Teabout v. Albany County Sheriff's Dept., 182 A.D.3d 709, 709, 121 N.Y.S.3d 444 [2020] ).

There is no dispute that claimant violated Workers' Compensation Law § 114–a and was subject to a mandatory penalty. Rather, the carrier argues, first, that the Board erred in limiting the time period of the mandatory penalty and, second, that the Board should have imposed the maximum discretionary penalty. In imposing a mandatory penalty disqualifying claimant from benefits for the period from May 17, 2018 through July 31, 2018, the Board reviewed the video surveillance, claimant's testimony and the medical reports and testimony, and the Board found that this is the period in which he received benefits that were directly attributable to his misrepresentation of his impairment level. On the first day of the video surveillance, April 11, 2018, claimant is observed walking, driving and working under his truck, at points on his hands and knees. The subsequent videos depict claimant engaged in various activities, without apparent difficulty or pain, including gardening, in which he is seen bending down, weeding, using a garden hose and cleaning up. The videos also show claimant running errands, driving, shopping and lifting a large bag from a home improvement store and placing it into his vehicle. At the hearing, claimant testified that, since the accident, he was not able to do any landscaping or gardening, he was unable to mow the grass and he could not shop "like before." He acknowledged that he was able to drive short distances and to run errands, but he stated that he had tried to do maintenance on his car but was not able to do so.

The Board also relied upon the reports and testimony of Ronald Light, the carrier's orthopedic consultant who examined claimant on May 17, 2018, finding that he had a moderate disability and could return to...