Swiech v. City of Lackawanna

• Citation: 174 A.D.3d 1001,101 N.Y.S.3d 775
• Decision Date: 03 July 2019
• Docket Number: 527159
• Parties: In the Matter of the Claim of David T. SWIECH, Appellant, v. CITY OF LACKAWANNA et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court Appellate Division

174 A.D.3d 1001
101 N.Y.S.3d 775

In the Matter of the Claim of David T. SWIECH, Appellant,
v.
CITY OF LACKAWANNA et al., Respondents.

Workers' Compensation Board, Respondent.

527159

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

Calendar Date: April 30, 2019
Decided and Entered: July 3, 2019

101 N.Y.S.3d 776

Law Office of Kathryn Kirsch, Clarence (Melanie D. Cleckner of counsel), for appellant.

Hamberger & Weiss, Buffalo (John Land of counsel), for City of Lackawanna and another, respondents.

Before: Garry, P.J., Clark, Mulvey, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

101 N.Y.S.3d 777

174 A.D.3d 1001

Appeals (1) from a decision of the Workers' Compensation Board, filed November 28, 2017, which ruled, among other things, 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 June 20, 2018, which denied claimant's application for full Board review.

Claimant sustained an established injury to his neck in 2007 in the course of his employment as a firefighter, as well as a prior established injury to his back in 2000. In 2008, he had cervical fusion surgery and retired, and in 2010 he had lumbar surgery. In 2016, the parties addressed issues of permanency and apportionment and the employer's workers' compensation carrier conducted an independent medical exam finding that claimant had a marked permanent partial disability. A functional capacity evaluation (hereinafter FCE) was performed in June 2016, claimant's treating physicians were deposed and, at a November 2016 hearing, the carrier disclosed the existence of an investigation. Claimant then testified and the carrier raised the issue of whether claimant had violated Workers' Compensation Law § 114–a. After reviewing the testimony and surveillance video of claimant taken earlier that month, a Workers' Compensation Law Judge concluded that claimant's activities did not rise to the level of a

174 A.D.3d 1002

Workers' Compensation Law § 114–a violation. The Workers' Compensation Board, with one panel member dissenting, concluded that claimant had violated Workers' Compensation Law § 114–a, imposed a mandatory penalty and permanently disqualified him from receiving future wage replacement benefits.¹ The dissenting panel member agreed that claimant had violated Workers' Compensation Law § 114–a but would not have imposed the discretionary penalty of permanent disqualification. The full Board denied claimant's application for full Board review based on the failure to comply with the governing regulation (see 12 NYCRR 300.13 ). Claimant appeals from both decisions.

Workers' Compensation Law § 114–a (1) provides that a claimant who "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 Losurdo v. Asbestos Free , 1 N.Y.3d 258, 264, 771 N.Y.S.2d 58, 803 N.E.2d 379 [2003] ). "A determination by the Board as to whether a claimant violated Workers' Compensation Law § 114–a will not be disturbed if supported by substantial evidence" ( Matter of Santangelo v. Seaford U.F.S.D. , 165 A.D.3d 1358, 1359, 85 N.Y.S.3d 265 [2018] [citations omitted], lv denied 32 N.Y.3d 914, 2019 WL 192081 [2019] ; see Matter of Howard v. Facilities Maintenance Corp. , 143 A.D.3d 1032, 1033, 38 N.Y.S.3d 635 [2016] ).

Based upon claimant's representations and performance during the FCE, the evaluator concluded, as relevant here, that claimant was unable to "lift or carry any weighted objects" and could not pick up any objects from floor level. He was unable to kneel, crouch, reach for an object or complete any of the balance tasks, had limited lumbar flexion and presented as unable to lift overhead due to restricted range of motion. Claimant reported that he could only walk one-half block, which

101 N.Y.S.3d 778

would require 8 to 10 minutes before the onset of back pain, and was unable to carry a box 25 feet. Based upon his performance, the FCE evaluator concluded that claimant had "marked functional limitations" related to his cervical and lumbar spine and was only capable of less than sedentary physical demands. Based, in part, upon the FCE, claimant's treating orthopedic surgeon concluded that he could not lift any weight and was unable to carry, kneel, bend or reach overhead, and rated him as having a less than sedentary exertional ability. The orthopedist concluded that claimant had "significant difficulty with everything." Claimant's internal medicine physician, who treated his back problems and evaluated him three times in

174 A.D.3d 1003

2016, likewise testified that claimant could not perform any lifting, carrying, pulling or pushing, had constant pain and a burning sensation in his legs and primarily had to rest in a recliner to prevent pain, which was exacerbated by any...