NY Board Has Broad Discretion in Reviewing § 114-a Issues
In a decision that illustrates the tremendous breadth of discretion allowed to the New York Workers’ Compensation Board, a state appellate court affirmed a Board decision—in spite of findings by a WCLJ to the contrary—that a claimant’s failure to disclose several prior motor vehicle accidents involving injuries to her neck and back was not the sort of voluntary misrepresentation as to justify disqualification from receiving benefits under N.Y. Workers’ Comp. Law § 114-a [Matter of Sanchez v. US Concrete, 2021 N.Y. App. Div. LEXIS 3334 (3d Dept. May 20, 2021)]. Moreover, the appellate court stressed that the Board was empowered to make such a determination in spite of the fact that the claimant’s application for administrative review was defective (claimant’s counsel had failed to sign the RB-89 form’s affirmation of filing and service).
Background
Claimant sought workers’ compensation benefits, citing work-related injuries from an incident at work in August 2017. Her claim was thereafter established for an aggravation of an abdominal injury and later amended to include injuries to her back and neck and consequential major depression disorder. In February 2019, the employer’s workers’ compensation carrier raised the issue of claimant’s violation of N.Y. Workers’ Comp. Law § 114-a.
Following a hearing, in July 2019, a WCLJ found that claimant had violated § 114-a by not fully disclosing her medical history regarding her neck and back. The WCLJ further found that only the mandatory penalties would be imposed and that the award periods for the abdomen injury and psychological disorder were not affected by the N.Y. Workers’ Comp. Law § 114-a violation. The WCLJ continued the case by scheduling a hearing to address the mandatory penalties, other alleged injury sites and claimant’s average weekly wage. Claimant’s counsel applied for administrative review of this decision by the Workers’ Compensation Board.
Carrier Directed to Discontinue Payments to Claimant
While that application for Board review was pending, the hearing scheduled by the WCLJ was held. At its conclusion, in a decision filed on October 1, 2019, the WCLJ amended the claim to include a work-related injury to the left knee, set claimant’s average weekly wage at $809.65, and directed the carrier to discontinue making payments as a result of the prior finding of a § 114-a violation.
Claimant’s counsel filed an application for Board review of this decision as well, using form RB-89. The carrier filed a rebuttal in which, among other things, it requested that the Board deny the application for review because the affirmation of the proof of service on the RB-89 form was defective.
Board Rescinds Finding of § 114-a Violation
In a decision rendered on the administrative appeals of both WCLJ decisions, the Board modified the July 2019 decision by rescinding the WCLJ’s finding of a N.Y. Workers’ Comp. Law § 114-a violation. The Board denied claimant’s appeal of the October 2019 WCLJ decision based upon a failure to provide proof of timely service of the application on the necessary parties on the RB-89 form. However, insofar as the Board had rescinded the finding of a § 114-a violation in the July 2019 WCLJ decision, the Board exercised its continuing jurisdiction pursuant to N.Y. Workers’ Comp. Law § 123 to modify the October 2019 WCLJ decision by rescinding the direction that the carrier discontinue making payments as the result of the prior finding of a § 114-a violation and ordered that the payments continue. The employer, the carrier and the third-party administrator (hereinafter collectively referred to as the carrier) appealed and claimant cross appealed.
Claimant Suffered Prior Motor Vehicle Accidents
The carrier contended that claimant violated N.Y. Workers’ Comp. Law § 114-a by failing to disclose several prior motor vehicle accidents from 1999 to 2014 that involved injuries to claimant’s neck and back. The Board noted, however, that claimant disclosed that she had suffered previous injuries to those sites in her application for benefits and had informed medical providers that she had been involved in prior motor vehicle accidents and a slip and fall accident that resulted in injuries to those sites.
Appellate Court’s Decision on § 114-a Violation
Acknowledging that the claimant had failed to disclose the extent of her earlier injuries or the number of prior motor vehicle accidents, the Court observed, however, that the Board credited the claimant’s testimony that she could not recall many of the accidents, finding that such testimony was reasonable due to their remoteness in time. The appellate court concluded that in light of claimant’s disclosures and deferring to the Board’s credibility assessment, substantial evidence supported the Board’s determination that claimant did not knowingly misrepresent material facts in violation of N.Y. Workers’ Comp. Law § 114-a.
Denial of Claimant’s Application to Review Was Within Board’s Discretion
As to claimant’s contention that the Board abused its discretion in denying consideration of her application to review the WCLJ’s October 2019 decision, the appellate court said it was well settled that the Board had the authority to adopt reasonable rules and that the Chair of the Board may make reasonable regulations consistent with the provisions of the statutory framework. The Chair had designed forms RB-89 and RB-889.1 as the prescribed format for applications and rebuttals.
As relevant here, the Court noted that the Board could deny an application for review when the appellant failed to supply proper proof of timely service upon a necessary party. The record reflected that with regard to claimant’s RB-89 form, the affirmation of filing and service was not signed. As such, the Board acted within its discretion in denying claimant’s application to review the WCLJ’s October 2019 decision.
Rescinding § 114-a Disqualification Was Also Within Board’s Discretion
The appellate court added, however, that despite the Board’s denial of the claimant’s application, it was also well settled that the Board had continuing power and jurisdiction over each claim and, utilizing its discretion, it could modify or change an award as in its opinion might be just. The court concluded that the Board acted within its discretion in rescinding that portion of the WCLJ’s October 2019 decision that directed the carrier to discontinue benefit payments based upon the prior finding of a N.Y. Workers’ Comp. Law § 114-a violation.