Haner v. Niagara Cnty. Sheriff's Dept.

188 A.D.3d 1432

136 N.Y.S.3d 187

In the Matter of the Claim of Traci HANER, Respondent,

v.NIAGARA COUNTY SHERIFF'S DEPT. et al., Appellants.

Workers' Compensation Board, Respondent.

531085

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

Calendar Date: October 13, 2020

Decided and Entered: November 19, 2020

Law Offices of Melissa A. Day, PLLC, Amherst (James B. Cousins of counsel), for appellants.

Lewis & Lewis, PC, Buffalo (Daniel P. Kuhn of counsel), for Traci Haner, respondent.

Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Mulvey, J. Appeal from a decision of the Workers' Compensation Board, filed August 12, 2019, which ruled, among other things, that claimant complied with 12 NYCRR 300.13(b) and reviewed a decision by the Workers' Compensation Law Judge.

Claimant, a correction officer, has an established workers' compensation claim for right plantar fasciitis and a right ankle sprain. The Workers' Compensation Board ultimately found, among other things, that there was insufficient medical evidence to conclude that claimant had a further causally-related disability after May 21, 2018 and rescinded all prior tentative indemnity awards made after that date. After the self-insured employer and its third-party administrator (hereinafter collectively referred to as the employer) raised the issue of fraud under Workers' Compensation Law § 114–a, a Workers' Compensation Law Judge (hereinafter WCLJ) precluded claimant from testifying on the alleged violation of Workers' Compensation Law § 114–a based upon her nonappearance at a scheduled hearing on that issue. The WCLJ also directed the employer to produce its surveillance videos of claimant taken on 14 different days between May 17, 2018 and September 19, 2018 showing claimant performing activities of daily living with and without a CAM (controlled ankle motion/movement) walker boot. Following the employer's submission of its evidence in support of its allegation that claimant violated Workers' Compensation Law § 114–a, and an April 2019 hearing on the issue of the alleged fraud, the WCLJ found that claimant violated Workers' Compensation Law § 114–a by misrepresenting her condition to procure a medical report from her treating physician – stating that she was totally disabled after that physician previously testified that she was only mildly disabled – and imposed mandatory and discretionary penalties.

On May 22, 2019, claimant filed an application for Board review (form RB–89) challenging the WCLJ's finding that claimant violated Workers' Compensation Law § 114–a and the imposition of penalties. In its rebuttal (form RB–89.1), the employer requested denial of claimant's application for Board review, contending, among other things, that the application was untimely mailed to, and not properly served upon, the employer, that claimant's counsel did not state a proper exception on the record following the WCLJ's finding of fraud and that claimant's application failed to list all necessary documents in support of her administrative appeal, as required by question number 13 on form RB–89, rendering claimant's application for Board review incomplete and, therefore, defective. In an August 2019 Board panel decision, the Board rejected the employer's procedural claims, finding, among other things, timely and proper service of claimant's application for Board review, that claimant's counsel noted a specific objection or exception at the hearing to the WCLJ's finding of fraud and that the Board would exercise its discretion to grant review of that application based upon claimant's substantial completion of question number 13 on that form. The Board then reversed the decision of the WCLJ, finding insufficient evidence that claimant had violated Workers' Compensation Law § 114–a. The employer appeals.

Initially, the employer principally argues that claimant's response to question number 13 was not complete and that the Board therefore lacked the authority and discretion to review claimant's application for Board review under 12 NYCRR 300.13(b). We disagree. The Board has the "authority to adopt reasonable rules consistent with and supplemental to the provisions of the Workers' Compensation Law," and the Chair of the Board may "make reasonable regulations consistent with the provisions of the statutory framework" ( Matter of Cotter v. Town of W. Seneca , 180 A.D.3d 1122, 1123, 118 N.Y.S.3d 314 [2020] [internal quotation marks and citations omitted]; see Workers' Compensation Law § 117[1] ; Matter of Johnson v. All Town Cent. Transp. Corp. , 165 A.D.3d 1574, 1574, 85 N.Y.S.3d 625 [2018] ). To this end, the Board's regulations provide that "an application to the Board for administrative review of a [WCLJ's] decision ... shall be in the format as prescribed by the Chair," and such application "must be filled out completely" ( 12 NYCRR 300.13 [b][1]; see Matter of Simon v. Mehadrin Prime , 184 A.D.3d 927, 928, 123 N.Y.S.3d 554 [2020] ; Matter of Perry v. Main Bros Oil Co. , 174 A.D.3d 1257, 1258, 106 N.Y.S.3d 228 [2019] ; Matter of Jones v. Human Resources Admin. , 174 A.D.3d 1010, 1011, 103 N.Y.S.3d 193 [2019], lv denied 34 N.Y.3d 906, 2019 WL 6909647 [2019] ). Where a party who is represented by counsel fails to comply with the Board's formatting, completion and service submission requirements, the Board may exercise its discretion to deny an application for Board review (see 12 NYCRR 300.13 [b][4]; Matter of Wanamaker v. Staten Is. Zoological Socy. , 184 A.D.3d 925, 927, 125 N.Y.S.3d 180 [2020] ; Matter of Randell v. Christie's Inc. , 183 A.D.3d 1057, 1060, 123 N.Y.S.3d 742 [2020] ; Matter of Charfauros v. PTM Mgt. , 180 A.D.3d 1132, 1133, 118 N.Y.S.3d 305 [2020], lv denied 35 N.Y.3d 909, 2020 WL 3467462 [2020] ).

Although the employer is correct that the Board's regulations require an applicant seeking Board review to fill out the RB–89 form completely and in the proper format (see 12 NYCRR 300.13 [b][1]), the Board's regulations do not mandate denial of an incomplete application for Board review. Rather, the regulations provide that such an "application for review may be denied" by the Board, in its discretion, where the application "does not comply with prescribed formatting, completion and service submission requirements" ( 12 NYCRR 300.13 [b][4][i] [emphasis added]; see Matter of Waufle v. Chittenden , 167 A.D.3d 1135, 1136–1137, 87 N.Y.S.3d 748 [2018] ). Upon reviewing claimant's response to question number 13 on her application for Board review, which listed numerous documents in support of her administrative appeal, we find that the Board acted within its discretion in granting review of claimant's application. We likewise find that the Board acted within its discretion to excuse any alleged defects relating to the timeliness and proper service of claimant's application for Board review (see 12 NYCRR 300.13 [b][4][i]).

Turning to the merits, 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 Calabrese v. Fortini Inc. , 179 A.D.3d 1279, 1280, 117 N.Y.S.3d 331 [2020] ; Matter of Sidiropoulos v. Nassau Intercounty Express , 178 A.D.3d 1266, 1267, 115 N.Y.S.3d 530 [2019] ). "For purposes of Workers'...