Third Department Decisions 6-25-15

Today the Court decided 2 cases dealing with workers’ compensation.

In Matter of Dacey,  the carrier appealed  from a decision of the Workers’ Compensation Board, filed January 22, 2013, which ruled that claimant did not violate Workers’ Compensation Law § 114-a.

In September 2000, claimant sustained a work-related injury to his back while operating a forklift; he was classified as permanently partially disabled in 2006 and last reported working in 2007. He continued to receive workers’ compensation benefits for a temporary partial disability. Claimant subsequently underwent spinal fusion surgery in 2009, and his benefits were made permanent in July 2010. The employer’s workers’ compensation carrier later raised the issue of whether claimant violated Workers’ Compensation Law § 114-a and disclosed that it had carried out video surveillance of claimant in August 2010.

Hearings were held in 2011, at which claimant testified that he had reported not working in 2010 to his treating physician and the carrier’s consultant, and that he had applied for maintenance and cleaning work at Skye High Ink, a tattoo parlor owned by a lifelong friend, but had not been hired or performed work there.

The carrier’s investigator testified that he conducted 23 hours of surveillance of claimant over a three-day period in August 2010, as depicted in the video recording  and reflected in his report. The Workers’ Compensation Law Judge concluded that claimant had violated Workers’ Compensation Law § 114-a by, among other things, not testifying truthfully at the hearing regarding the true nature of his work activities at Skye High Ink and his physical abilities, and imposed penalties.

Upon review, the Workers’ Compensation Board reversed, concluding that the record did not support a finding that claimant violated Workers’ Compensation Law § 114-a.

The Court affirmed. Pursuant to Workers Compensation Law § 114-a (1), a claimant who, for the purpose of obtaining wage replacement benefits or to influence  any determination related to payment thereof, “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 NY3d 258, 264-266 [2003]).

The determination of the Board as to whether a claimant violated this provision “will not be disturbed if substantial evidence supports it” (Matter of Gillian v New York State Dept. of Corrections, 88 AD3d 1035, 1036 [2011]).

Here, the Board found that, despite surveillance of claimant over the course of three days, the investigator “captured less than one hour of actual footage of . . . claimant,” during which there was one “isolated instance of . . . claimant using an electric saw” to cut pieces of wood molding which, due to their size, did not appear to be “challenging.” The Board characterized the activity as “de minimis” and concluded that it “was not inconsistent with claimant’s partial disability,” noting that there were no weight lifting restrictions placed upon his activities and no other evidence that claimant performed any work for that business, received remuneration therefrom or was regularly present thereat. The surveillance video, which – as relevant here – shows claimant performing light wood-cutting activity for approximately 30 minutes outside the tattoo parlor, did not contradict his testimony or the Board’s factual findings that claimant did not knowingly make false statements or representations (see Matter of Lleshi v Dag Hammarskjold Tower, 123 AD3d 1386, 1387 [2014]). Given that “[t]he Board is the sole arbiter of witness  credibility” (Matter of Borgal v Rochester-Genesee Regional Transp. Auth., 108 AD3d 914, 915 [2013] [internal quotation marks and citations omitted]) and its conclusions are supported bysubstantial evidence in the record, its decision will not be disturbed (see id. at 915-917; Matter of Feisthamel v Marcy Correctional Facility, 26 AD3d 554, 555 [2006]).

In Matter of Scalo,  Appeal from a decision of the Workers’ Compensation Board, filed February 10, 2014, which denied the request of the employer and its workers’ compensation carrier for reconsideration and/or full Board review.

Claimant filed a claim for workers’ compensation benefits after he injured his back while working for the employer. The employer controverted the claim, arguing  that the injury was not work-related or, in the alternative, that the injury is subject to apportionment. Following a hearing, a Workers’ Compensation Law Judge established the claim and awarded benefits without apportionment, and the Workers’ Compensation Board affirmed. The employer and its workers’ compensation carrier (hereinafter collectively referred to as the employer) applied for reconsideration and/or full Board review. The application was denied, but we reversed on the ground that such applications must be considered by a panel of at least three members of the Board (112 AD3d 1077 [2013]). Upon remittal, a three-person panel of the Board denied the application, and the employer appeals.

The Court affirmed. Inasmuch as only the Board’s decision denying reconsideration and/or full Board review is being appealed, the merits of the underlying decision  are not before us and our review is limited to whether the denial was arbitrary and capricious or otherwise constituted an abuse of discretion (see Matter of Mazzaferro v Fast Track Structures, Inc., 106 AD3d 1302 [2013]; Matter of Capalbo v Stone & Webster Constr. Servs., 91 AD3d 1263, 1263-1264 [2012]). The employer challenges the Board’s denial on the ground that the Board did not consider certain evidence. This evidence, however, was not timely produced before the Workers’ Compensation Law Judge and, even assuming that the Board did not consider it, we cannot say that such would constitute an abuse of discretion (see generally Matter of Cross v G.A. Hall, Inc., 24 AD3d 903, 904-905 [2005]). Nor was this newly discovered evidence that was unavailable at the time of the hearings (see Matter of McCorkle-Spaulding v Lowe’s, 95 AD3d 1513, 1514 [2012]; Matter of Green v Kimber Mfg., Inc., 59 AD3d 782, 783 [2009], lv dismissed 12 NY3d 865 [2009]).

Inasmuch as “the employer failed to demonstrate the existence of any newly discovered evidence, a material change in condition or that the Board improperly failed to consider the issues before it,” we cannot say that the Board abused its discretion or acted in an arbitrary and capricious manner in denying the employer’s application for reconsideration and/or full Board review (Matter of Barone v Interstate Maintenance Corp., 73 AD3d 1302, 1303 [2010]; see Matter of Regan v City of Hornell Police Dept., 124 AD3d 994, 997 [2015]). The employer’s remaining claims, to the extent they are properly before us, have been considered and found to be without merit.

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