Dunleavy v. Federated Fire Prot.

• Decision Date: 11 March 2021
• Docket Number: 531679
• Citation: 192 A.D.3d 1303,144 N.Y.S.3d 241
• Parties: In the Matter of the Claim of Brian DUNLEAVY, Respondent, v. FEDERATED FIRE PROTECTION (TURNER CONSTRUCTION) et al., Appellants. Workers’ Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1303

144 N.Y.S.3d 241

In the Matter of the Claim of Brian DUNLEAVY, Respondent,

v. FEDERATED FIRE PROTECTION (TURNER CONSTRUCTION) et al., Appellants.Workers’ Compensation Board, Respondent.

531679

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

Calendar Date: February 8, 2021

Decided and Entered: March 11, 2021

Goldberg Segalla, LLP, Syracuse (Cory A. DeCresenza of counsel), for appellants.

Letitia James, Attorney General, New York City (Alison Kent–Friedman of counsel), for respondent.

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

MEMORANDUM AND ORDER

Clark, J. Appeal from a decision of the Workers’ Compensation Board, filed September 17, 2019, which ruled, among other things, that claimant violated Workers’ Compensation Law § 114–a and imposed a penalty.

Claimant, a steamfitter, filed a claim for workers’ compensation benefits in August 2013, contending that he had sustained an occupational/repetitive stress injury to his neck over the course of his 30 years of installing sprinkler systems. While undergoing an independent medical examination performed by Robert Elkins in April 2015, claimant indicated – in response to a questionnaire – that he had neither worked in any capacity nor engaged in physical activity of any type outside of his home since 2013, asserting that his pain resulted in a "[t]otal interference" with his recreational activities and hobbies. Claimant's written responses mirrored his subsequent hearing testimony, wherein he stated that he had "zero range of motion" in his neck and was unable to work at all. Based upon this proof, a Workers’ Compensation Law Judge (hereinafter WCLJ) established the claim in June 2015 and set the date of disablement as February 12, 2013.

In July 2016, claimant's treating physician, Robert Hecht, concluded that claimant had sustained a permanent injury to his cervical spine

, had reached maximum medical improvement and was capable of performing only less than sedentary work. Thereafter, in June 2017, claimant completed a loss of wage-earning capacity vocational data form, wherein he listed pipefitter and steamfitter as his only job titles for the preceding 10 years. Depositions of Hecht and Elkins ensued, and the employer's workers’ compensation carrier, citing a surveillance video of claimant, raised the issue of a possible Workers’ Compensation Law § 114–a violation.

During the ensuing hearing, claimant acknowledged that, in addition to his primary occupation as a steamfitter, he also was a member of a fire department until 2012 – ultimately attaining the rank of Fire Chief. As to his physical activities, claimant testified that, following surgery to his neck in 2013, he "tried to swing a golf club" but was "[n]ot really" successful, that he would only "try to play" golf if he was "hav[ing] a good day" and that, when he did play, he did not "play all 18 holes" and would "have to take a break." Claimant further testified that he did not perform any chores or upkeep at his Florida residence, that he did not do "too much" work at his father's home on Fire Island, where claimant would stay in the summer, and that he could not recall an instance where he had occasion to use a weedwhacker or a Sawzall. The surveillance video obtained by the carrier's investigator in the summer of 2017, however, showed claimant playing 18 holes of golf and using the aforementioned power tools to perform landscaping around the Fire Island residence. According to the investigator's notes, claimant was observed "dragging large [tree] limbs along the ground" and engaging in various golf-related activities, such as shouldering his golf bag, bending and squatting.

Following receipt of the investigator's testimony and the surveillance video, a WCLJ directed Hecht and Elkins to prepare addenda to their previous reports. No response was received from Hecht, and Elkins, although acknowledging that claimant appeared to have "underestimated his own activities compared to his actual capabilities," found no change in claimant's impairment. Based upon the video, Elkins opined that claimant was capable of light-duty work.

Ultimately, the WCLJ found, among other things, that claimant had sustained a permanent partial disability and suffered a 65% loss of wage-earning capacity; however, as claimant was not attached to the labor market, he was not entitled to an award at that time. Additionally, the WCLJ agreed that claimant violated Workers’ Compensation Law § 114–a and disqualified claimant from receiving wage replacement benefits from April 14, 2015 (the date of the initial independent medical examination) to October 17, 2018. The WCLJ also assessed a $10,000 discretionary penalty, citing the nature and severity of claimant's misrepresentations, as well as the fact that he apparently was not actually paid benefits during the disqualification period. Upon administrative review, the Workers’ Compensation Board modified the WCLJ's decision by rescinding the monetary penalty and imposing a discretionary penalty equal to the period of the mandatory penalty should claimant demonstrate his attachment to the labor market and become eligible for benefits. The Board otherwise affirmed the WCLJ's decision, prompting this appeal.

We affirm. Although the parties do not dispute that claimant violated Workers’ Compensation Law § 114–a, the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) fault the Board for failing to permanently disqualify claimant from receiving benefits. Workers’ Compensation Law § 114–a (1) provides, in relevant part, that a claimant who, for the purpose of obtaining disability compensation or influencing a determination relative thereto, "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 Felicello v. Marlboro Cent. Sch. Dist., 178 A.D.3d 1252, 1253, 115 N.Y.S.3d 542 [2019] ; Matter of Smith v. Rochester–Genesee Regional Transp. Auth., 174 A.D.3d 1264, 1267, 104 N.Y.S.3d 425 [2019] ). In addition to this mandatory penalty, the Board may – in its discretion – "disqualify a claimant from receiving future benefits or ... impose an additional penalty up to the amount of the mandatory penalty" ( Matter of Restrepo v. Plaza Motors of Brooklyn Inc., 181 A.D.3d 1108, 1110, 121 N.Y.S.3d 420 [2020] [internal quotation marks, brackets and citation omitted]; see Matter of Van Etten v. Mohawk Val. Community Coll., 120 A.D.3d 1457, 1457–1458, 991 N.Y.S.2d 810 [2014] ). Permanent disqualification typically occurs where "the underlying deception has been deemed egregious or severe, or there was a lack of mitigating circumstances" ( Matter of Conliffe v. Darden Rest., 187 A.D.3d 1398, 1401, 132 N.Y.S.3d 466 [2020] [internal quotation marks and citations omitted]; see Matter of ...