Ortiz v. Calvin Maint.

199 A.D.3d 1211

158 N.Y.S.3d 312

In the Matter of the Claim of Manuel ORTIZ, Appellant,

v.CALVIN MAINTENANCE et al., Respondents.

Workers’ Compensation Board, Respondent.

532221

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

Calendar Date: October 12, 2021

Decided and Entered: November 18, 2021

Ginarte Gallardo Gonzalez Winograd, LLP, New York City (Timothy Norton of counsel), for appellant.

LOIS LLC, Paramus, New Jersey (Jeremy L. Janis of counsel), for Calvin Maintenance and another, respondents.

Before: Garry, P.J., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from a decision of the Workers’ Compensation Board, filed March 23, 2020, which ruled, among other things, that claimant violated Workers’ Compensation Law § 114–a and disqualified him from receiving future indemnity benefits.

In August 2009, claimant, a laborer, sustained work-related injuries when he fell off a ladder, and his subsequent claim for workers’ compensation benefits (hereinafter the 2009 claim) was established for injuries to his head, neck and back and later amended to include a consequential psychiatric condition. In a September 2012 decision, a Workers’ Compensation Law Judge (hereinafter WCLJ) found, among other things, that claimant had no further disability after July 28, 2012 that was causally related to the 2009 claim, and, following claimant's administrative appeal to the Workers’ Compensation Board to challenge that finding, the Board affirmed the decision of the WCLJ.

In June 2013, claimant sustained various injuries when a light fixture that he was working on fell on top of him, and the instant claim for workers’ compensation benefits was ultimately established for work-related injuries to his right forearm, right shoulder, neck, back and right elbow and amended to include the left shoulder, adjustment disorder with mixed anxiety and depression, and consequential deep vein thrombosis and pulmonary embolism.¹ At a June 2017 hearing, the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) requested a hearing on the issue of whether claimant violated Workers’ Compensation Law § 114–a by failing to disclose his established injuries from the 2009 claim on his C–3 form and to the medical consultants and physicians who provided treatment to him for the injuries he sustained as a result of the June 2013 accident. Following hearings and further development of the record on the issue of claimant's alleged violation of Workers’ Compensation Law § 114–a, the WCLJ ultimately determined that claimant had violated Workers’ Compensation Law § 114–a by omitting and/or misrepresenting the established injuries that he sustained from the 2009 claim and imposed mandatory and discretionary penalties. Upon administrative appeal, the Board affirmed the decision of the WCLJ, and claimant appeals.

"[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 Kornreich v. Elmont Glass Co., Inc., 194 A.D.3d 1322, 1323, 149 N.Y.S.3d 340 [2021], quoting Workers’ Compensation Law § 114–a [1] ; see Matter of Sidiropoulos v. Nassau Intercounty Express, 178 A.D.3d 1266, 1267, 115 N.Y.S.3d 530 [2019] ; see also Matter of Losurdo v. Asbestos Free, Inc., 1 N.Y.3d 258, 265, 771 N.Y.S.2d 58, 803 N.E.2d 379 [2003] ). "For purposes of Workers’ Compensation Law § 114–a, a fact is material ... so long as it is significant or essential to the issue or matter at hand" ( Matter of Ordaz v. Jerrick Assoc. Inc., 194 A.D.3d 1331, 1332, 149 N.Y.S.3d 331 [2021] [internal quotation marks and citations omitted]; see Matter of Felicello v. Marlboro Cent. Sch. Dist., 178 A.D.3d 1252, 1253, 115 N.Y.S.3d 542 [2019] ), and " ‘an omission of material information may constitute a knowing false statement or misrepresentation’ " ( Matter of Sanchez v. U.S. Concrete, 194 A.D.3d 1287, 1288, 148 N.Y.S.3d 533 [2021], quoting Matter of Kodra v. Mondelez Intl., Inc., 145 A.D.3d 1131, 1133, 42 N.Y.S.3d 467 [2016] ; accord Matter of Young v. Acranom Masonary Inc., 193 A.D.3d 1315, 1316, 147 N.Y.S.3d 705 [2021] ). "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 Kornreich v. Elmont Glass Co., Inc., 194 A.D.3d at 1323, 149 N.Y.S.3d 340 [internal quotation marks and citations omitted]; accord Matter of Sanchez v. U.S. Concrete, 194 A.D.3d at 1288, 148 N.Y.S.3d 533 ).

The record reflects that, although claimant sustained a prior work-related injury in 2009 and received treatment for that injury for several years and as recently as 2015, he failed to disclose this information on the C–3 form that he filed on October 2, 2013 for the instant claim. Claimant also denied ever having a similar condition or prior accident on two separate questionnaires submitted to physicians conducting independent orthopedic examinations in October 2015 and April 2017. Although claimant disclosed the prior injury to Frank Dudak, an orthopedic surgeon who examined claimant in December 2013 on behalf of the carrier, and explained to Dudak that his lower back had recovered, claimant did not reveal the full extent of the prior work-related injuries that he sustained in 2009. Moreover, the record establishes that claimant either failed to inform or consistently denied having sustained a prior work-related injury to his treating physicians and to the carrier's consultants over the course of his treatment for the 2013 work-related injury.² Although claimant testified that he never intended to hide or conceal the prior work-related injury and attributed his various omissions about the prior injury to communication difficulty and his need for an interpreter, his testimony in this regard presented credibility issues to be resolved by the Board (see Matter of Poli v. Taconic Correctional Facility, 83 A.D.3d...