Young v. Acranom Masonary Inc.

193 A.D.3d 1315

147 N.Y.S.3d 705

In the Matter of the Claim of Timothy YOUNG, Appellant,

v.ACRANOM MASONARY INC. et al., Respondents.

Workers’ Compensation Board, Respondent.

531928

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

Calendar Date: March 10, 2021

Decided and Entered: April 29, 2021

The Weinstein Law Group, PLLC, New York City (Rudolf B. Radna of counsel), for appellant.

Goldberg Segalla LLP, Garden City (Cory A. DeCresenza of counsel), for Acranom Masonary Inc. and another, respondents.

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

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from a decision of the Workers' Compensation Board, filed February 20, 2020, which ruled that claimant violated Workers' Compensation Law § 114–a and imposed a penalty.

Claimant, a forklift operator, established a workers' compensation claim for injuries to his back stemming from a May 2018 work-related accident and received voluntary indemnity benefits from May 12, 2018 to June 21, 2019. Claimant's treating physician continuously diagnosed claimant with a total temporary disability. Claimant returned to work for a different employer on April 1, 2019, but did not inform any of the parties or the Workers' Compensation Board. Thereafter, the employer's workers' compensation carrier raised an issue of whether claimant violated Workers' Compensation Law § 114–a, disclosing that it had obtained video surveillance of claimant.

Following a hearing, a Workers' Compensation Law Judge ruled that claimant engaged in fraud by failing to disclose that he had returned to work and imposed a mandatory penalty for a specified period, as well as a discretionary penalty of a lifetime bar of indemnity benefits. Upon administrative review, the Board found that claimant violated Workers' Compensation Law § 114–a as evidenced by the video surveillance – which, according to the Board, shows that claimant misrepresented the extent of his disability and functional limitations – and by claimant's admission that he cashed workers' compensation checks while performing work. The Board, noting that it is "common practice" for a Workers' Compensation Law Judge to direct a claimant to report a return to work to the Board and the carrier, found that claimant's failure to disclose his return to work and cashing the compensation checks while performing such work constituted a misrepresentation warranting the imposition of a mandatory penalty. In addition, the Board assessed a discretionary penalty of permanent disqualification of indemnity benefits. Claimant appeals.

" 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’ " ( Matter of Barros v. John P. Picone, Inc. , 188 A.D.3d 1397, 1398, 135 N.Y.S.3d 506 [2020] [citation omitted]; see Matter of Losurdo v. Asbestos Free , Inc., 1 N.Y.3d 258, 264, 771 N.Y.S.2d 58, 803 N.E.2d 379 [2003] ). "A fact is considered material when it is significant or essential to the issue or matter at hand" ( Matter of Teabout v. Albany County Sheriff's Dept. , 182 A.D.3d 709, 709, 121 N.Y.S.3d 444 [2020] [citations omitted]). Moreover, "an omission of material information may constitute a knowing false statement or misrepresentation" ( Matter of Williams v. New York City Dept. of Corr. , 188 A.D.3d 1382, 1383, 135 N.Y.S.3d 514 [2020] [internal quotation marks and citations omitted]; see Matter of Galeano v. International Shoppes , 171 A.D.3d 1416, 1418, 97 N.Y.S.3d 360 [2019] ). It is within the province of the Board, which is the sole arbiter of witness credibility, to determine whether a claimant violated Workers' Compensation Law § 114–a, and its decision will not be disturbed if supported by substantial evidence (see Matter of Haner v. Niagara County Sheriff's Dept. , 188 A.D.3d 1432, 1435, 136 N.Y.S.3d 187 [2020] ).

Claimant contends that substantial evidence does not support a finding that he violated Workers' Compensation Law § 114–a. From May 2018 through June 2019, claimant's treating physician continuously diagnosed claimant as temporarily totally disabled. However, claimant acknowledged in his testimony that he returned to work for a different employer as early as April 1, 2019. Furthermore, claimant failed to notify the Board, his former attorney or his former employer of his return to work. Finally, once working, he continued to receive workers' compensation benefits.¹ Moreover, the video surveillance, while perhaps not fatal standing alone, does show claimant working on vehicles, bending, stooping, lying on the ground and lifting a trailer. In light of the foregoing, we find that substantial evidence supports the Board's...