Matter of Claim of Wesley Church v. Arrow Electronic, Inc.

• Decision Date: 07 January 2010
• Docket Number: 503836
• Citation: 69 A.D.3d 983,2010 NY Slip Op 25,891 N.Y.S.2d 562
• Parties: In the Matter of the Claim of WESLEY CHURCH, Appellant, v. ARROW ELECTRONIC, INC., et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent.
• Court: New York Supreme Court — Appellate Division

69 A.D.3d 983

891 N.Y.S.2d 562

2010 NY Slip Op 25

In the Matter of the Claim of WESLEY CHURCH, Appellant, v. ARROW ELECTRONIC, INC., et al., Respondents WORKERS' COMPENSATION BOARD, Respondent.

503836

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

Decided January 7, 2010.

Appeals (1) from a decision of the Workers' Compensation Board, filed July 2, 2007, as amended by decision filed July 16, 2007, which, among other things, ruled that claimant violated Workers' Compensation Law § 114-a and disqualified him from receiving future wage replacement benefits, and (2) from a decision of said Board, filed May 1, 2008, which denied claimant's request for full Board review.

Stein, J.

Claimant injured his back in April 2003 while lifting boxes in a warehouse owned by the employer, underwent substantial back surgery in September 2003 and was awarded wage replacement benefits in December 2003. In December 2005, after surveillance and independent medical examinations of claimant, the workers' compensation carrier sought to suspend payments to him on the ground that he had voluntarily removed himself from the labor market. In addition, outstanding issues included permanency and degree of disability. After hearings were held, a Workers' Compensation Law Judge (hereinafter WCLJ) found claimant to be permanently partially disabled and awarded him payments of $166.53 per week.

The workers' compensation carrier applied for review by a panel of the Workers' Compensation Board. Based upon its determination that claimant "knowingly made false statements and representations as to a material fact for the purpose of influencing the determination of workers' compensation benefits in violation of [Workers' Compensation Law] § 114-a," the Board rescinded the benefits awarded to claimant for the period from April 19, 2005 to May 18, 2006 and disqualified him from future receipt of wage replacement benefits from May 18, 2006 onward.¹ Claimant's subsequent application for review by the full Board was denied. Claimant now appeals both from the Board's decision reversing the WCLJ² and from the denial of his application for full Board review.³

Contrary to claimant's contention, we find that the Board's determination was supported by substantial evidence. Workers' Compensation Law § 114-a (1) provides that a claimant will be disqualified from receiving compensation attributable to a false statement or representation of a material fact made for the purpose of obtaining wage replacement benefits. Any compensation already paid to a claimant which is "directly attributable" to a claimant's misrepresentations must be rescinded by the Board (Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265 [2003]). The Board also has the discretionary authority to disqualify the claimant from receiving any future wage compensation benefits regardless of "whether or not the claimant is subject to the mandatory penalty" (id. at 265-266), even if the claimant has suffered a compensable injury (see id. at 266; Matter of Lopresti v Washington Mills, 23 AD3d 725, 726 [2005]). In addition, the Board may subject the claimant to an additional penalty up to the amount directly attributable to the false statement or representation (see Workers' Compensation Law § 114-a [1]).

Here, claimant testified in a hearing before the WCLJ that, due to pain in his leg resulting from his back injury, he walked with a limp "[m]ost of the time" and that his activities were extremely limited. He further testified that he could "lift a little," but that his pain was aggravated by sitting, lifting and bending. On the other hand, the carrier's examining physician testified that claimant "was only moderately cooperative and gave a fair effort" at his exam. He further testified that claimant appeared to be magnifying his symptoms and complained of more pain than the physician would have expected based on his objective findings. Additionally, at the time of examination, the physician noted that claimant walked "with a severe antalgic gait and a limp of his right leg," but then observed him walking through the parking lot immediately after the examination with "only a trace of a limp" and a much better gait. The carrier also submitted videotapes depicting, among other things, claimant—generally with a very slight limp—bending and picking up and swinging his grandchildren. Claimant's attempts to explain the discrepancies between his representations and the observations of...