The Court decided 3 cases dealing with compensation issues 4-30-15

In Matter of Harper, the carrier appealed from a decision of the Workers’ Compensation Board, filed October 18, 2013, which ruled that claimant did not violate

Workers’ Compensation Law § 114-a. Claimant obtained workers’ compensation benefits as the result of a 2002 back injury and was eventually found to suffer from a permanent total disability. He was prescribed the opiate Kadian and was required to undergo urine drug tests to ensure that he was taking the medication. After a physician retained by the employer and its workers’ compensation carrier (hereinafter collectively referred to as the employer) pointed out that those tests revealed that claimant was not taking Kadian on a regular basis, claimant was discharged from the care of his pain management physician. The employer argued that claimant had knowingly misrepresented his Kadian usage, and that he should be disqualified from receiving wage replacement benefits pursuant to Workers’ Compensation Law § 114-a.

The Workers’ Compensation Board ultimately disagreed, and the employer now appeals.

The Court affirmed. Workers’ Compensation Law § 114-a (1) provides for both mandatory and discretionary penalties when, for the purpose of obtaining wage replacement benefits 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” (see e.g. Matter of Rodriguez v Burn-Brite Metals Co., 1 NY3d 553, 555 [2003]). As such, while “a false statement need not affect the dollar value of an award to be material within the meaning of section 114-a (1),” it must be significant to the existence of a claim for workers’ compensation benefits (Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265 [2003]; see Matter of Jordan v Saratoga County Pub. Health Nurses, 45 AD3d 1074, 1074-1075 [2007]; Matter of Lopresti v Washington Mills, 23 AD3d 725, 726 [2005]). Claimant here attempted to explain why he did not routinely take Kadian, but the Board rejected his testimony as incredible. The Board nevertheless noted the lack of evidence that claimant was selling the excess Kadian or attempting to profit from it and, accordingly, found that the record did not establish that his misrepresentations were made for purposes of obtaining compensation (see Matter of Donato v Aquarian Designs, Inc., 96 AD3d 1302, 1304 [2012]; compare Matter of Harabedian v New York Hosp. Med. Ctr., 35 AD3d 915, 916 [2006]; Employer: Telespectrum Worldwide, Inc., 2009 WL 607974, *3, 2009 NY Wrk Comp LEXIS 5919, *8-9 [WCB No. 9990 0694, Mar. 2, 2009]). Thus, substantial evidence supports the Board’s determination that a penalty under Workers’ Compensation Law § 114-a (1) was not warranted (see Matter of Borgal v Rochester-Genesee Regional Transp. Auth., 108 AD3d 914, 915-917 [2013]; Matter of Engoltz v Stewart’s Ice Cream, 91 AD3d 1066, 1067 [2012]).

In Matter of Hunter, the claimant appealed from a decision of the Workers’ Compensation Board, filed April 25, 2014, which ruled, among other things, that claimant voluntarily removed himself from the labor market.

Claimant, a sanitation worker, sustained a work-related back injury in 1996 and was awarded workers’ compensation benefits. Claimant returned to work later that year, and a finding of permanency was not made. In 2005, liability for the claim was shifted to the Special Fund for Reopened Cases. In the interim, claimant obtained workers’ compensation benefits as the result of other injuries to both knees, his left foot and his right shoulder, and all of those claims were resolved via schedule loss of use awards. In 2010, claimant retired after 32 years of service, crediting his decision to the various work related injuries he had sustained, and thereafter sought an award of postretirement benefits, arguing that the 1996 injury had left him unable to work. The Workers’ Compensation Board ultimately disagreed and found, among other things, that claimant’s retirement was unrelated to the 1996 injury and constituted a voluntary withdrawal from the work force. Claimant appealed and the Court affirmed “Whether a retirement or withdrawal from the labor market is voluntary is a factual determination to be made by the Board, and its decision will be upheld when supported by substantial evidence” (Matter of Ballou v Southworth-Milton, Inc., 107 AD3d 1084, 1085 [2013] [citations omitted]; see Matter of Goldstein v Prudential, 117 AD3d 1368, 1369-1370 [2014]). A variety of medical evidence in the record reflects that the 1996 injury was responsible for only a mild or moderate disability that did not impair claimant’s ability to work. Claimant himself testified that he was able to work despite the constraints placed upon him by the 1996 back injury, noting that his knee problems caused him far more difficulty. Indeed, claimant stopped working immediately before he underwent a second knee replacement and was advised that he would not be able to return to employment as a result of that surgery. Further evidence that claimant’s retirement resulted from his knee problems, and not the 1996 back injury, is provided by a 2010 report by claimant’s treating chiropractor stating that claimant was “disabled due to work injury to his knees.” In short, substantial evidence supports the determination of the Board that claimant’s 1996 injury played no role in his decision to retire (see Matter of Goldstein v Prudential, 117 AD3d at 1369-1370; Matter of Resto v New York City Housing Auth., 14 AD3d 741, 741-742 [2005]; Matter of Sanders v Nyack Hosp., 277 AD2d 829, 830 [2000]). Under these circumstances, the fact that an orthopedist found the 1996 injury to be totally disabling after claimant’s retirement did not compel a different result or entitle him to ongoing benefits (see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582, 584 [2006]; Matter of Sanders v Nyack Hosp., 277 AD2d at 830).

In Matter of Holley , the carrier appealed a finding that 25-a did not apply. Claimant injured his left knee while working in June 2001, and he successfully applied for workers’ compensation benefits. In 2003, he was found to have a 25% schedule loss of use of his left leg. No further benefits were awarded until June 2012, when a Workers’ Compensation Law Judge awarded benefits for work that claimant had missed from August 2008 to October 2008 and directed that they be credited against the prior schedule loss of use award. In October 2012, the workers’ compensation carrier for the employer requested that liability for the claim be transferred to the Special Fund for Reopened Cases (see Workers’ Compensation Law § 25-a). The Workers’ Compensation Board ultimately denied that request as premature, and the carrier appeals.

The Court affirmed. “Pursuant to “Pursuant to Workers’ Compensation Law § 25-a, the transfer of liability for a claim is appropriate when an application to reopen a closed case is made more than seven years from the date of injury and more than three years after the last payment of compensation” (Matter of Thurston v Consolidated Edison Co. of N.Y., Inc., 115 AD3d 1143, 1144 [2014] [internal quotation marks and citations omitted]; see Matter of Khomitch v Crotched Mtn. Community, 120 AD3d 1459, 1461 [2014]). The only dispute here is when the last payment of compensation was made and, in that regard, “a carrier may be deemed to have made a payment of compensation ‘by claiming a credit on a previous overpayment'” (Matter of Negron v Sky View Haven Nursing Home, Inc., 50 AD3d 1344, 1345 [2008], quoting Matter of Reed v Danz Constr. Co., 9 AD2d 1004, 1005 [1959]). Moreover, “by claiming credit for an overpayment, the carrier was relieved of making a payment as of the date that it would have been required to make such payment” (Matter of Negron v Sky View Haven Nursing Home, Inc., 50 AD3d at 1345 [emphasis omitted]). The carrier here would have been required to make payment to claimant in June 2012, when the Workers’ Compensation Law Judge implicitly rescinded the earlier schedule loss of use award and credited the award of benefits for August 2008 to October 2008 against the prior payment (see Workers’ Compensation Law § 25 [3] [f]; Matter of Negron v Sky View Haven Nursing Home, Inc., 50 AD3d at 1345- 1346; Matter of Reed v Danz Constr. Co., 9 AD2d at 1005). Inasmuch as the carrier sought to shift liability to the Special Fund less than a year later, the Board properly found that the time periods of Workers’ Compensation Law § 25-a had not been met.

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