Losurdo v. Asbestos Free

• Decision Date: 22 December 2003
• Citation: 803 N.E.2d 379,771 N.Y.S.2d 58,1 N.Y.3d 258
• Parties: In the Matter of JAMES A. LOSURDO, Appellant, v. ASBESTOS FREE, INC., Respondent. WORKERS' COMPENSATION BOARD, Respondent. In the Matter of FLORENCIA MACHADO, Appellant, v. PLEASANTVILLE FORD, INC., et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent.
• Court: New York Court of Appeals Court of Appeals

1 N.Y.3d 258

803 N.E.2d 379

771 N.Y.S.2d 58

In the Matter of JAMES A. LOSURDO, Appellant, v. ASBESTOS FREE, INC., Respondent.

WORKERS' COMPENSATION BOARD, Respondent.

In the Matter of FLORENCIA MACHADO, Appellant, v. PLEASANTVILLE FORD, INC., et al., Respondents.

WORKERS' COMPENSATION BOARD, Respondent.

Court of Appeals of the State of New York.

Argued November 18, 2003.

Decided December 22, 2003.

Olinsky & DiMartino, Oswego (Howard D. Olinsky and Jaya Shurtliff of counsel), for appellant in the first above-entitled proceeding.

Wood & Richmond, LLP, North Syracuse (John I. Hvozda of counsel), for Asbestos Free, Inc., respondent in the first above-entitled proceeding.

Hoffman, Wachtell, Koster & Maier, White Plains (Lee A. Hoffman, Jr., of counsel), for appellant in the second above-entitled proceeding. Alison Kent-Friedman, New York City, and James P. O'Connor for respondents in the second above-entitled proceeding.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

READ, J.

These appeals call for us to decide whether section 114-a (1) of the Workers' Compensation Law authorizes the Workers' Compensation Board to disqualify a claimant from receiving wage replacement benefits where the forfeited compensation is not "directly attributable" to a false statement or representation.¹ We hold that section 114-a (1) affords the Board discretion to impose such a penalty; however, the records below in these two cases are inadequate for us to determine whether the Board properly exercised its discretion.

I.

A. Losurdo

Appellant James Losurdo sought workers' compensation benefits for an injury to his left knee, which occurred on September 12, 1994, while he was working for his employer, Asbestos Free, Inc. At a hearing held on May 15, 1997, Losurdo denied having previously injured his left knee. The Workers' Compensation Law Judge (WCLJ) found that accident, notice and causal relationship were established for Losurdo's injury, and awarded him wage replacement benefits.

The employer's carrier requested review of the WCLJ's decision. The carrier argued that medical records demonstrated a preexisting injury to Losurdo's left knee, and sought apportionment. The carrier also requested a fraud investigation pursuant to section 114-a (1) because at the hearing Losurdo denied a preexisting injury. At the new hearing, Losurdo professed that he had honestly not recalled any previous injury to his left knee when he testified in 1997. He admitted that the medical records refreshed his memory about the previous injury. On September 8, 1999, the WCLJ found that Losurdo had not violated section 114-a (1), and that no apportionment was necessary, citing Matter of Peziol v VAW of Am. (245 AD2d 877, 877 [3d Dept 1997] ["(I)nasmuch as claimant was able to effectively perform his job despite his noncompensable preexisting [ ] condition, apportionment does not apply"]).

On July 27, 2001, the Board modified the WCLJ's decision by finding that Losurdo had made "a misstatement of fact" concerning the injury site, which was material and violated section 114-a (1) "notwithstanding the fact that the claimant's compensable injury is not, as a matter of law, apportionable with his prior injuries." The Board rescinded all wage replacement awards after May 16, 1997; disqualified Losurdo from any future wage replacement benefits; and closed the case. The Board did not in any way contradict the establishment of the claim or the existence of a compensable injury. The Appellate Division affirmed (302 AD2d 703 [3d Dept 2003]), holding that the Board's determination of a statutory violation was supported by substantial evidence, and that its interpretation of section 114-a (1) was reasonable. The Appellate Division did not independently review the penalty imposed.

B. Machado

Appellant Florencia² Machado sought workers' compensation benefits for a back injury that he sustained on June 13, 1989, while working as an auto mechanic for his employer, Pleasantville Ford, Inc. The WCLJ found that accident, notice and causal relationship were established for the injuries sustained, and awarded Machado compensation for total disability. In 1995, Machado was found to be partially disabled, and his wage replacement award was consequently reduced. Machado protested, claiming that he was totally disabled.

To investigate Machado's claim of total disability, the employer's carrier arranged for surveillance, which revealed that Machado was driving a taxi. At a new hearing requested by the carrier and held on September 26, 1996, Machado denied that he had "continued to do any work" since the accident. The carrier countered with the testimony of its investigator and the surveillance tape.

The WCLJ found that Machado was permanently partially disabled as a result of his work-related injury, notwithstanding his stint as a taxi driver. Alluding to the reduced earnings provisions in Workers' Compensation Law § 15 (3) (w), he disqualified Machado from all wage replacement benefits received from January through September of 1996 because Machado's income could not be determined for this period of time. The WCLJ also found that Machado had stopped working on September 26, 1996, and reinstated wage replacement benefits subsequent to that date at the rate for partial disability.

On November 30, 2000, the Board reversed the WCLJ's decision. The Board stated that section 114-a (1) contains two penalties—one mandatory and the other discretionary. Finding that Machado had received compensation attributable to his false statements and representations, the Board agreed with the WCLJ that section 114-a (1) required forfeiture of wage replacement benefits received by Machado from January through September of 1996. In addition, the Board disqualified Machado from receiving any wage replacement benefits subsequent to September 1996, and closed the case. The Appellate Division held that the Board's determination of statutory violation was supported by substantial evidence (305 AD2d 704 [3d Dept 2003]), and concluded that under section 114-a (1), the Board may cut off the entire monetary award or a portion of it. The Appellate Division's review of the penalty was limited to the observation that "[i]nasmuch as the penalty imposed by the Board is specifically authorized by the statute, we decline to disturb it" (id. at 706).

II.

Section 114-a (1), which was added to the Workers' Compensation Law in 1996 as part of remedial legislation to repeal Dole v Dow Chem. Co. (30 NY2d 143 [1972]) and to curtail fraud, provides as follows:

"If for the purpose of obtaining compensation pursuant to section fifteen of this chapter, or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In addition, as determined by the board, the claimant shall be subject to a disqualification or an additional penalty up to the foregoing amount directly attributable to the false statement or representation."

Preliminarily, we address the requirement that section 114-a (1) comes into play only when a claimant makes a false statement or representation as to a "material fact." Pointing to People v Hunter (34 NY2d 432 [1974]), appellant Losurdo insists that a false statement or representation is material only if it enables a claimant to receive compensation to which he was not otherwise entitled. But section 145 of the Social Services Law, the statute at issue in Hunter, differs markedly from section 114-a (1). Section 145 (1) makes it a crime to deliberately conceal a "material fact" when applying for public assistance benefits, providing that "[a]ny person who by means of a false statement or representation . . . obtains or attempts to obtain. . . public assistance or care to which he is not entitled . . . shall be guilty of a misdemeanor." (Emphasis added.) Thus, in Hunter we held that "[b]y definition, the fact concealed would not be material unless it allowed the defendant to obtain benefits to which he would not otherwise be entitled" (34 NY2d at 436 [internal quotation marks omitted]). Section 114-a (1) places no comparable limitation on materiality. Accordingly, the "usual and commonly understood meaning" of the word "material" is all that the statute intends (Matter of Orens v Novello, 99 NY2d 180, 186 [2002] [citations omitted]; see also Matter of Flow v Mark IV Constr. Co., 288 AD2d 779, 780

[3d Dept 2001] [holding that phrase "material fact" in section 114-a (1) is not unconstitutionally vague, "has a common understanding and is used, without definition, in many other statutory schemes"]). We hold that a fact is material for purposes of section 114-a (1) so long as it is "significant or essential to the issue or matter at hand" (see Black's Law Dictionary 611 [7th ed 1999]); therefore, a false statement need not affect the dollar value of an award to be material within the meaning of section 114-a (1). Losurdo's denial of a previous injury to his left knee was significant to his claim of entitlement to workers' compensation benefits and therefore was material.

Next, section 114-a (1) provides, as relevant here,³ that if the Board determines that a claimant has made a false statement or representation as to a material fact, "such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation" (emphasis added). The language is carefully crafted in that imposition of the penalty is mandatory ("shall") and a strong link must be established between the false statement or representation and the forfeited compensation ("directly attributable").

Further, "[i]n addition"⁴ to the mandatory penalty, section 114-a (1) grants the Board discretion to impose...