NY Claimant Should Not Have Been Permanently Barred From Indemnity Benefits
A New York appellate court held that while the state’s Workers’ Compensation Board was within its discretion when it found an injured worker had violated N.Y. Workers’ Comp. Law § 114-a, by failing to disclose that he had returned to work for a new employer, the record did not contain adequate support for the Board’s determination that the claimant should be permanently disqualified from all future wage replacement benefits [Matter of Young v. Acranom Masonary, 2021 N.Y. App. Div. LEXIS 2675 (3d Dept. Apr. 29, 2021)]. The court noted that the claimant had acknowledged in his testimony that he returned to work without notifying the Board or his attorney, but it added that because of extenuating circumstances, the permanent ban was too harsh.
Background
Claimant, a forklift operator, established a workers’ compensation claim for injuries to his back stemming from a May 2018 work-related accident and received voluntary indemnity benefits from May 12, 2018 to June 21, 2019. Claimant’s treating physician continuously diagnosed claimant with a total temporary disability. Claimant returned to work for a different employer on April 1, 2019, but did not inform any of the parties or the Board. Thereafter, the employer’s workers’ compensation carrier raised an issue of whether claimant violated N.Y. Workers’ Comp. Law § 114-a.
Following a hearing, a WCLJ ruled that claimant engaged in fraud by failing to disclose that he had returned to work and imposed a mandatory penalty for a specified period, as well as a discretionary penalty of a lifetime bar of indemnity benefits. The Board affirmed, noting that videotape surveillance of the claimant’s activities showed that he had misrepresented the nature and extent of his disability. The Board also noted that it was “common practice” for a WCLJ to direct a claimant to report a return to work to the Board and the carrier. The Board found that claimant’s failure to disclose his return to work and cashing the compensation checks while performing such work constituted a misrepresentation warranting the imposition of a mandatory penalty. The Board also assessed a discretionary penalty of permanent disqualification of indemnity benefits. Claimant appealed.
Appellate Court’s Decision: § 114-a Violation
The appellate court observed that it was within the province of the Board, which was the sole arbiter of witness credibility, to determine whether a claimant violated N.Y. Workers’ Comp. Law § 114-a; its decision would not be disturbed if supported by substantial evidence.
Reviewing the evidence before the Board, the court noted that the claimant failed to notify the Board, his former attorney, or his former employer of his return to work. Moreover, once working, he continued to receive workers’ compensation benefits. The court noted that the video surveillance, while perhaps not fatal standing alone, did show claimant working on vehicles, bending, stooping, lying on the ground and lifting a trailer. In that light, the court found that substantial evidence supported the Board’s determination that claimant violated § 114-a.
Permanent Disqualification Not Justified
Permanent disqualification from receiving indemnity benefits was another matter, indicated the court. The claimant had been forthright in his testimony that he returned to work. The court noted that while the Board had indicated that it was “common practice” for a WCLJ to direct a claimant to report a return to work, there was nothing in the record to indicate that the claimant had been so advised. Indeed, in April 2019, the claimant had requested further action due to his dire financial situation.
The court also noted that there was no medical testimony as to claimant’s disability. Independent medical examiners had found that claimant had lumbar restrictions on all planes, but suffered from a mild to moderate disability, and could return to work with restrictions. As to the video surveillance the court noted evidence that the claimant received an epidural block just prior to the surveillance, which he reported to his physician alleviated 80 percent of his back pain. The appellate court concluded that based on all the circumstances, there was inadequate support for the Board’s determination to permanently disqualify claimant from all future wage replacement benefits.