NY Claimant’s Failure to Disclose Gambling Activities Constitutes § 114-a Violation
A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that not only imposed the mandatory penalty rescinding the claimant’s award of workers’ compensation benefits, but also imposed a discretionary penalty disqualifying claimant from receiving any future wage replacement benefits where claimant had admitted, in a separate criminal proceeding, that he and others had accepted bets totaling $5,000 in any one day [Matter of Kornreich v. Elmont Glass Co., 2021 N.Y. App. Div. LEXIS 3450, 2021 NY Slip Op 03352 (3d Dept. May 27, 2021)]. The court said it was within the discretion of the Board to discount claimant’s contention that he was addicted to gambling.
Background
In 2007, claimant suffered work-related injuries to his neck and back and his claim for workers’ compensation benefits was established. That claim was later amended to include consequential depressive disorder. In 2014, claimant pleaded guilty to attempted promoting gambling in the first degree.
During the plea colloquy, claimant admitted that, on or about September 8, 2011, he worked with co-conspirators to attempt to advance unlawful gambling activity. Thereafter, the employer’s workers’ compensation carrier raised the issue as to whether claimant had violated N.Y. Workers’ Comp. Law § 114-a. Following a hearing, a WCLJ found, among other things, that claimant had violated § 114-a by asserting that he had not performed work for himself or others on a paid or unpaid basis on work activity reports (WA-1 forms) submitted to the carrier between September 22, 2011 and April 14, 2014. The WCLJ imposed the mandatory penalty rescinding the award of workers’ compensation benefits after September 22, 2011 and a discretionary penalty disqualifying claimant from receiving any future wage replacement benefits. The Board adopted the findings of the WCLJ and affirmed. Claimant appealed.
Appellate Court Decision
Initially, the appellate court noted that the “issue of whether a claimant had violated N.Y. Workers’ Comp. Law § 114 was within the province of the Board, which was the sole arbiter of witness credibility. The Board’s decision would not be disturbed if supported by substantial evidence.
The appellate court observed that, along with the WA-1 forms signed by claimant, the record contained the plea transcript, in which claimant admitted that he knowingly advanced unlawful gambling activity by engaging in bookmaking with others to the extent that they accepted more than five bets totaling $5,000 in any one day.
Claimant testified that he never made any misrepresentations regarding his work status during the time he was receiving workers’ compensation benefits. Further, he asserted in a written statement to the Board that he has a gambling addiction and that, despite his guilty plea, his gambling activities should not be considered work, in that he merely placed bets with bookmakers but did not act as a bookmaker himself.
The court stressed that claimant’s exculpatory statements created a credibility issue for the Board to resolve. It had done so. The Board’s decision that claimant knowingly made false misrepresentations would not be disturbed. Moreover, the appellate court rejected claimant’s contention that the Board’s imposition of the discretionary penalty of permanent disqualification from future indemnity benefit payments was inappropriate. The court said the Board had adopted the findings of the WCLJ that, given claimant’s illegal work activity and repeated denials thereof, his behavior was “egregious” and warranted the discretionary penalty. Under these circumstances, the appellate court concluded that the rationale for the imposition of the penalty was sufficiently explained and that the penalty was not disproportionate to claimant’s misrepresentations.