Third Department Decision 7-11-13

The Court today decided 3 cases dealing with workers compensation issues.

In Matter of Aska, the carrier appealed from a decision of the Workers Compensation Board, filed December 20, 2011, which ruled that the employers workers compensation carrier was directed to pay claimant certain benefits plus penalties pursuant to Workers Compensation Law $ 25 (3) (f), and (2) from a decision of said Board, filed April 23, 2012, which denied the carriers request for reconsideration and/or full Board review.

In 2005, claimant was injured in a work-related accident and was awarded workers compensation benefits. Claimant thereafter commenced a third-party action, which was settled with the consent of the employers workers compensation carrier in 2008. In February 2010, claimant and the employer entered into a stipulation that was incorporated into a decision of the Workers Compensation Law Judge providing that claimant suffered a 29% schedule loss of use of her left foot. The resulting total award was $16,886.17, with a $4,211.06 credit to the carrier for claimants third-party recovery and $3,298 reimbursement to the disability benefits carrier. The remainder, less counsel fees, was to be paid by the carrier directly to claimant. The carrier failed to make timely payment of the total due claimant and, after a hearing, the Workers Compensation Law Judge determined that claimant was owed $7,977.11 plus a penalty in the amount of $1,595.42. Upon review, the Workers Compensation Board affirmed. The carriers subsequent request for reconsideration and/or full Board review was denied. The employer and carrier (hereinafter collectively referred to as the carrier) appealed from both decisions.

The carrier did not dispute the application of a 20% penalty based upon its late payment of the award to claimant pursuant to Workers Compensation Law $ 25 (3) (f) (see Matter of Malone v Bernhardt Paving, 2 NY3d 756, 757 [2004]; Matter of Keser v New York State Elmira Psychiatric Ctr., 92 NY2d 100, 103 [1998]). However, the carrier maintains that it was entitled to take a credit against the award for prior payments of benefits. It is clear from the binding stipulation and Workers Compensation Law Judge decision of February 2010 that, after the credits and reimbursements specified, claimant was to receive $9,377.11, less counsel fees of $1,400, for a total of $7,977.11 (see Matter of Mickens v New York City Tr. Auth., 32 AD3d 1128, 1129 [2006]; 12 NYCRR 300.5 [b] [2]). There is nothing in the stipulation or, indeed, the record indicating that the parties expected or had any reasonable grounds to expect that claimants award would be further reduced by the amount of these prior payments of compensation. Moreover, as the Board noted, the carrier was reimbursed for its prior payments of compensation from claimants third-party recovery, satisfying the carriers lien and “erasing these payments.

The Court found that substantial evidence supports the Boards decision (see Matter of Deich v City of White Plains, 12 AD3d 928, 929 [2004]; Employer: Yeshia University, 2006 WL 3336904, 2006 NY Wrk Comp LEXIS 9588, [WCB No. 0051 6928, Oct. 26, 2006]). Inasmuch as the underlying decision is supported by substantial evidence, we also conclude that the Boards denial of the request for reconsideration and/or full Board review was not arbitrary and capricious or otherwise an abuse of discretion (see Matter of Washburn v Bob Hooey Constr. Co., 39 AD3d 956, 958 [2007]; Matter of Cagle v Judge Motor Corp., 31 AD3d 1016, 1018 [2006], lv dismissed 7 NY3d 922 [2006]).

In Matter of Casale, Appeal from a decision of the Workers Compensation Board, filed February 1, 2012, which, among other things, ruled that claimants counsel fee award was a lien against any future payments of compensation to be made to claimant.

Claimant, a police officer for the City of Rye, Westchester County, submitted a claim for workers compensation benefits after sustaining a fractured wrist on the job in July 2010. The employer did not controvert the claim and paid claimant full wages during the period of his disability, for which it sought reimbursement from its workers compensation carrier. On January 6, 2011, the Workers Compensation Board, without holding hearings, issued a proposed decision that established the claim and directed the workers compensation carrier to reimburse the employer for the period of July 2010 to September 2010. Shortly thereafter, claimants counsel filed a request for fees with the Board. On the same day that such request was faxed to the Board, the carrier made full reimbursement to the employer. The Board subsequently rescinded its January 6, 2011 decision and issued a proposed decision dated January 27, 2011 that, as relevant here, awarded claimants counsel a $750 fee and directed that it be paid by the carrier as a lien on the current award. The carrier objected, citing the fact that the award had already been paid and, ultimately, the Board rescinded all prior decisions and scheduled a hearing. At the hearing, the Workers Compensation Law Judge declined to grant counsels request for a fee. Upon administrative appeal, the Board modified and granted claimants counsel a $750 fee as a lien on any future awards made. Claimant now appeals, asserting that the counsel fee award should have been made immediately payable by the carrier as an overpayment.

We affirm. Counsel fees in conjunction with a workers compensation claim may be attached as a lien to any compensation awarded,’ and the fact that a balance is not currently owing to a claimant does not preclude an award of fees made payable as a lien against future awards (Matter of Burke v Verizon Servs. Group, 87 AD3d 1237, 1238-1239 [2011], quoting Matter of Dickman v City of New York, 25 AD2d 931 [1966], affd 18 NY2d 969 [1966]; see generally Matter of Scandale v New York Tel. Co., 55 AD2d 761, 761 [1976]). Inasmuch as the Board is vested with broad discretion with regard to the approval and manner of payment of counsel fees’ (Matter of Rodd v Coram Fire Dist., 12 AD3d 890, 891 [2004], quoting Matter of Marchese v New York State Dept. of Correctional Servs., 293 AD2d 920, 921-922 [2002]; see Workers Compensation Law $ 24), and considering that there is nothing in the record establishing that the carrier received notice of the counsel fee request before it made full reimbursement to the employer, we decline to disturb its decision to award such fees as a lien against future awards.

In Matter of Bergal, Appeal from a decision of the Workers Compensation Board, filed February 21, 2012, which, among other things, ruled that claimant did not violate Workers Compensation Law $ 114-a.

In January 2009, claimant suffered work-related injuries to his left shoulder and right hand. He continued working until July 2009, when he underwent surgery to repair a torn rotator cuff in his left shoulder. Workers compensation benefits were awarded from the date of surgery forward, on a total temporary disability basis. Subsequently, claimant began experiencing increased pain, and an MRI performed in August 2010 revealed a retearing of the rotator cuff. At a hearing held in June 2010, the self-insured employer disclosed that it had carried out surveillance on claimant and thereafter raised the issue of whether he had violated Workers Compensation Law $ 114-a. Following subsequent hearings, a Workers Compensation Law Judge (hereinafter WCLJ) found, among other things, that claimant had not violated Workers Compensation Law $ 114-a and compensation benefits were continued. Upon review, the Workers Compensation Board affirmed and the employer appealed. The court affirmed.

Pursuant to Workers Compensation Law $ 114-a (1), 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. The Board is the sole arbiter of witness credibility (Matter of Hammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d 1252, 1252 [2009] [citations omitted]; see Matter of Martinez v LeFrak City Mgt., 100 AD3d 1110, 1111 [2012]), and its determination of whether a claimant has violated Workers Compensation Law $ 114-a will be upheld if it is supported by substantial evidence in the record (see Matter of Martinez v LeFrak City Mgt., 100 AD3d at 1111; Matter of Siddon v Advance Energy Tech., 98 AD3d 1202, 1202 [2012]; Matter of McKenzie v Revere Copper Prods., 39 AD3d 1035, 1036 [2007]), even where there is evidence in the record that would support a different result (see Matter of Monzon v Sam Bernardi Constr., Inc., 60 AD3d 1261, 1263 [2009]; Matter of McKenzie v Revere Copper Prods., 39 AD3d at 1037;

Matter of Elmer v Marocchi Trucking Co., Inc., 30 AD3d 792, 794 [2006]).

Here, the employer initially argues that claimant misrepresented a material fact on two benefits questionnaires in November 2009 and June 2010 by stating that he did not work following his July 2009 shoulder surgery. The employer contends that the misrepresentation was evidenced by claimants testimony and the surveillance videos regarding his renovation of a residential property, which the employer argues constituted work. Claimant testified that, for the past eight years, he had been engaged in buying residential real estate property, renovating it and then selling it for a profit. The record reflects that claimant purchased a residential property in November 2009 and, with the help of others, he renovated it. Claimant admitted to participating in various activities on the property, namely, the performance of small tasks such as carrying out small items of trash, doing touch-up scraping and painting, light carpentry work and installing two lights in the garage. Claimants testimony indicated that the majority of the renovation work was completed by family members and hired contractors. The employers surveillance video recordings did not contradict this testimony, primarily showing claimant undertaking only light errands and tasks not directly related to the renovation. Moreover, the record reflects that claimant still owned the property at the time of the hearing, that his son was living there, that the property was not listed for sale and that claimant had not decided whether he would sell the property. While there is evidence that could support a different conclusion, we find that the Boards determination that claimants omission of his minimal renovation related activities did not constitute a violation of Workers Compensation $ 114-a (1) is supported by substantial evidence (see Matter of Engoltz v Stewarts Ice Cream, 91 AD3d 1066, 1067 [2012]; Matter of Hamza v Steinway & Sons, 88 AD3d 1033, 1033-1034 [2011]; compare Matter of Hadzaj v Harvard Cleaning Serv., 77 AD3d 1000, 1001-1002 [2010], lv denied 16 NY3d 702 [2011]).

The employer also argues that claimant violated Workers Compensation Law $ 114-a by misrepresenting the degree of his disability to his physician, as allegedly evidenced by claimants ability to perform various physical activities. Claimant testified that he informed his physician that he was performing various household activities. His physician, Matthew Landfried, testified that, although he did not recall claimant informing him about his activities, and his examination notes did not reflect that claimant had provided such information, he reported that, generally, he only makes specific notations of information that is out of the ordinary. Further, Landfried testified that, while claimant would have been restricted regarding physical activities for the first 12 weeks after his surgery, and there is no evidence that he failed to follow such restrictions during that time period, there were no restrictions on his performance of daily living activities thereafter. Landfried had determined that claimant was totally disabled from performing his job duties as a bus driver, but not totally disabled from all activities. Similarly, claimants physical therapist opined in September 2009 that claimant was cleared “for all normal household activities that dont require extreme reaching, quick unguarded movement or heavy lifting. In fact, the employers medical expert concluded after conducting an independent medical examination of claimant, reviewing his medical records and watching the surveillance videos that claimant had not misrepresented himself regarding his activities and physical capabilities. Finally, Landfried reviewed the surveillance videos and similarly concluded that claimants activities, as shown claimants activities, as shown on the videos, did not change his opinion as to the extent of claimants disability. Under these circumstances, the Boards determination that claimant did not violate Workers Compensation Law $ 114-a is supported by substantial evidence and will not be disturbed (see Matter of Donato v Aquarian Designs, Inc., 96 AD3d 1302, 1303 [2012]; Matter of Gillan v New York State Dept. of Corrections, 88 AD3d 1035, 1036 [2011]).