Strohschein v. Safespan Platform Sys. Inc.

207 A.D.3d 818

172 N.Y.S.3d 159

In the Matter of the Claim of Robert STROHSCHEIN, Appellant,

v.SAFESPAN PLATFORM SYSTEMS INC. et al., Respondents,Workers’ Compensation Board, Respondent.

530839

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

Calendar Date: June 2, 2022

Decided and Entered: July 7, 2022

Joel M. Gluck, New York City, for appellant.

Goldberg Segalla LLP, Buffalo (James M. Specyal of counsel), for Safespan Platform Systems Inc. and another, respondents.

Before: Garry, P.J., Egan Jr., Lynch, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from a decision of the Workers’ Compensation Board, filed July 16, 2019, which ruled, among other things, that claimant violated Workers’ Compensation Law § 114–a, and permanently disqualified him from receiving future wage replacement benefits.

In January 2018, claimant, an iron worker, filed a claim for workers’ compensation benefits alleging that he sustained an injury to his right biceps when he jumped and reached up for a piece of steel to pull himself up from a platform underneath a bridge.¹ Although the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) initially controverted the claim, following hearings and deposition testimony from claimant's treating physicians, a Workers’ Compensation Law Judge (hereinafter WCLJ) ultimately established the claim for a right biceps tendon tear and set claimant's average weekly wage. The claim was subsequently amended to include consequential nerve palsy of the right upper extremity. At a January 2019 hearing, the carrier raised the issue of claimant's attachment to the labor market and disclosed that it possessed surveillance videos and photographic evidence in support of its claim that claimant had violated Workers’ Compensation Law § 114–a by misrepresenting his medical condition to the carrier's consultant at a December 6, 2018 independent medical examination. Following hearings at which testimony was received regarding the alleged Workers’ Compensation Law § 114–a violation and claimant's labor market attachment, the WCLJ found that claimant's testimony demonstrated an attachment to the labor market and that there was insufficient evidence that claimant had violated Workers’ Compensation Law § 114–a. On administrative appeal, the Workers Compensation Board modified the decision of the WCLJ, finding that claimant had violated Workers’ Compensation Law § 114–a by misrepresenting and exaggerating his complaints to physicians, and assessed the mandatory penalty of forfeiture of benefits attributable to his misrepresentations and the discretionary penalty of disqualification from receiving future wage replacement benefits. The Board also found that claimant did not demonstrate an attachment to the labor market, as claimant failed to produce sufficient evidence of a diligent, timely and persistent search for employment. Claimant appeals.

We affirm. "[A] claimant who, for the purpose of obtaining disability compensation, or to influence any determination related to the 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’ " ( Matter of Galeano v. International Shoppes, 171 A.D.3d 1416, 1417–1418, 97 N.Y.S.3d 360 [2019] [ellipsis omitted], quoting Workers’ Compensation Law § 114–a [1] ; see Matter of Ringelberg v. John Mills Elec., Inc., 195 A.D.3d 1332, 1333, 150 N.Y.S.3d 156 [2021] ; Matter of Horn v. New York City Tr. Auth., 187 A.D.3d 1266, 1268, 132 N.Y.S.3d 171 [2020], lv denied 36 N.Y.3d 903, 2020 WL 7520710 [2020] ). Moreover, "an omission of material information may constitute a knowing false statement or misrepresentation" ( Matter of Kodra v. Mondelez Intl., Inc., 145 A.D.3d 1131, 1133, 42 N.Y.S.3d 467 [2016] ; see Matter of Angora v. Wegmans Food Mkts., Inc., 171 A.D.3d 1419, 1420, 97 N.Y.S.3d 366 [2019] ). "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 Barros v. John P. Picone, Inc., 188 A.D.3d 1397, 1399, 135 N.Y.S.3d 506 [2020] [internal quotation marks and citations omitted]).

In a December 2018 medical report, James Shortt, an orthopedic surgeon who examined claimant on behalf of the carrier, reported that claimant advised him that he uses a wrist brace and that, if he does not use the brace, his wrist goes into flexion and is more painful than normal. Claimant further advised Shortt that when he grips something, claimant finds it difficult to release his grip and that pain radiates up his arm from the dorsum of his wrist to the distal biceps. Based upon his review of claimant's medical records, his examination of claimant and claimant's statements, Shortt found that claimant would not be capable of repetitive use with his right hand or fine manipulation and that it was unlikely that claimant would ever be able to return to work as an iron worker. Shortt concluded that claimant had a 50% temporary medical impairment of a moderate degree, noting that claimant should continue to wear his wrist brace, that his grip and pinch strength on his right side was diminished as compared to his left side and that lifting and carrying should be limited to two to three pounds. Consistent with Shortt's findings, Aric Hausknecht, a physician specializing in neurology and pain management who examined claimant several times after his injury, including in September 2018, testified that claimant is required to wear a wrist splint all of the time due to the severity of his injuries, that he had not cleared claimant to drive and that claimant could not open any doors or perform any task that requires fine manipulation with his right hand. Similarly, Garrick Cox, an orthopedic surgeon who performed the March 2018 surgery on claimant, and saw claimant on, among other occasions, December 12, 2018, testified that, by December 2018, claimant's right hand was still profoundly weak and that it was very difficult for claimant to open his right hand to shake hands with somebody.

In contrast to the foregoing medical narratives and testimony, surveillance video taken on the day of Shortt's December 6, 2018 medical examination shows claimant entering the building with a brace on his right hand and using his right hand to open a car door and a building door and to hold open that building door. After the examination, claimant is observed leaving an eatery while carrying a bag of food in his right hand. Shortly thereafter, he is seen in a post office using his right hand without the brace and is later observed at home aggressively shaking out a car mat, and slapping it on the ground, using only his right hand. Claimant is also depicted on the video comfortably using and manipulating a handheld vacuum with his right hand to vacuum his car. He is later depicted lifting the top of a garbage can and moving the can using his right hand. He is seen later that day driving his car without use of the brace on...