The Full Board, at its meeting held on April 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on July 19, 2011.
The issue presented for Full Board Review is whether the claimant made a material misrepresentation in violation of Workers' Compensation Law (WCL) § 114-a.
In a decision filed on August 24, 2010, the Workers' Compensation Law Judge (WCLJ) found that the claimant did not make a material misrepresentation in violation of WCL § 114-a.
The Board Panel majority agreed with the WCLJ and affirmed the decision.
The dissenting Board Panel member would have found that claimant affirmatively made a material misrepresentation in violation of WCL § 114-a.
On July 27, 2011, the group self-insured employer (SIE) filed a request for Mandatory Full Board Review. The claimant filed a rebuttal on August 5, 2011.
Upon review, the Full Board votes to adopt the following findings and conclusions.
In a decision filed on March 30, 2009, this case was established for a left hip injury sustained on February 29, 2008, while the claimant was employed by Sani-Pro Disposal Services. The WCLJ set the claimant's average weekly wage at $1,032.07, and awarded continuing benefits to the claimant at the tentative rate of $407.92 (representing a 60% disability rate).
In an RFA-2 (Carrier's Request for Further Action) filed on January 11, 2010, the SIE raised the issue of the claimant's violation of WCL § 114-a, and requested a hearing in order to take the claimant's testimony.
In a November 16, 2009, IME-4 (Practitioner's Report of Independent Medical Examination) form filed with the Board on November 20, 2009, the SIE's consultant Dr. Barschi states that the claimant uses a cane whenever he walks more than a short distance, that he has experienced pain in his left hip, has difficulty tying his shoes when he bends down on his left side and that his symptoms increase with cold weather, and he has not returned to work. Dr. Barschi noted that claimant walks with a limp and used a cane in his left hand. Dr. Barschi stated that the claimant has difficulty performing deep knee bend on the left side due to his left hip and concluded that the claimant has degenerative arthritis secondary to a stress fracture that occurred on February 29, 2008, that a left total hip replacement is indicated and that further treatment including physical therapy is not necessary at this time.
At a hearing held on March 22, 2010, the carrier divulged the existence of video surveillance prior to claimant's testimony. Claimant testified that he has performed no work for pay since September of 2008, when he was taken off the job by his employer. He returned to work briefly between November 10, 2008, and December 2, 2008. He has done no work for pay in the last year. He volunteered at an art show in Armonk, New York for four days in June of 2009, but has performed no other such activity. The claimant was specifically asked whether he performed any work or helped a friend that could be construed as work and responded in the negative, but volunteered that he does sweep snow of the front porch at his home. The claimant also testified that he has difficulty bending over on his side, and that he may need a hip replacement. On cross-examination, the claimant indicated that he did volunteer work in an effort to get exercise for his legs. He testified that his volunteer responsibilities at the art show included only stocking toilet paper, and that the heavier duties were reserved for another volunteer. The claimant was specifically asked whether he performed "any other work, either on or off the books, that would include volunteer work and helping friend[s] and family members out with their businesses," to which he responded in the negative, volunteering that he only performed work around his own home (transcript, 3/22/10 hearing, p. 8). When asked to provide his address, the claimant indicated that he lived in Yonkers, New York.
In the resulting decision filed on March 25, 2010, the WCLJ awarded benefits to the claimant at the tentative rate of $407.97 from March 26, 2009, to March 23, 2010, authorized the claimant's left hip surgery and post-surgery physical therapy, granted the SIE's RFA-2 and suspended benefits subsequent to March 26, 2009. The WCLJ directed further development of the record with the testimony of the SIE's investigator with video, and the claimant, and summations.
An investigative report of Global Investigative Services, Inc., dated November 29, 2009, was filed with the Board on April 23, 2010. The report indicates that the claimant was observed at his November 16, 2009, IME appointment walking slowly and utilizing a cane. The claimant was later observed engaged in yard work at a home in Scarsdale, New York, that the claimant was no longer limping or using a cane, was bending "effortlessly" as he worked and showed no signs of discomfort.
At a hearing held on April 23, 2010, the SIE's video tape surveillance was shown and the SIE's investigator testified that he is the owner of Investigation Services, Inc., that he surveilled the claimant at the behest of the SIE on four occasions, October 28, 2009, October 29, 2009, November 16, 2009, and November 25, 2009, and took video of the claimant on October 29, 2009, and November 16, 2009. The investigator testified that on November 16, 2009, he took video of the claimant at an independent medical examination (IME) at 11:05 a.m. utilizing a cane, that he followed the claimant to a residence in Scarsdale, New York, where he videoed the claimant performing yard work over a 2.5 hour period, without using a cane. The investigator testified that at one point in the video, he captured the claimant bending over and raking under a car for leaves.
The claimant testified at the April 23, 2010, hearing that he resides in Yonkers, New York, that he has known the 99 year old owner of the property in Scarsdale he was performing work activities at on November 16, 2009, for twenty-four years. His brother's wife has worked for the homeowner for several years. He goes to her home in Scarsdale every day, but is not paid for the services that he performs on her behalf. He eats there several times a week and drives her to hair appointments. When asked why he did not disclose the activities that he performs at her house, the claimant responded that she is a friend, that he considers her to be family, and it is as if he lives at her house. On cross-examination the claimant again reiterated that he practically lives at the Scarsdale residence. The WCLJ then questioned the claimant as to why he did not disclose the activities at the Scarsdale home at the time he was discussing his activities at his own home. The claimant responded that he did not always engage in these activities at the Scarsdale home. On redirect, the claimant confirmed that the activities that he did engage in on November 16, 2009, was not heavy work, that the leaves he was raking were dry and the broom he was using weighed no more than 3 pounds. When then questioned by the WCLJ about his use of a cane, he explained that he needed to use the cane at the IME's office due to the stairs, and generally he only needed to use the cane for longer walks.
In the resulting decision filed on April 28, 2010, the WCLJ continued the case for the claimant's additional testimony. However, claimant did not testify again.
In a reserved decision filed on August 24, 2010, the WCLJ determined that the claimant did not violate WCL § 114-a as he had no intent to misrepresent the truth and did not make a material misrepresentation with respect to his activities at the home of a friend in Scarsdale, New York.
In its application for Mandatory Full Board Review, the SIE contends that the opinion of the dissenting Board Panel member should be adopted as the opinion of the Full Board, as the claimant only told the truth concerning the activities he performed at the house of his elderly friend when confronted with the SIE's video tape surveillance. The SIE contends that the claimant's excuse for failing to disclose these activities when asked if he did work for friends, namely that he considered the woman to be family, was incredible. The SIE argues that the claimant should be disqualified from receiving benefits after March 22, 2010, the date he first testified before the Board and misrepresented the truth.
In rebuttal, the claimant asserts that the WCLJ was in the best position to determine the claimant's credibility and properly concluded that the he had no intent to misrepresent the truth and did not engage in a material misrepresentation.
"Workers' Compensation Law § 114-a(1) provides that a claimant will be disqualified from receiving compensation attributable to a false statement or representation of a material fact made for the purpose of obtaining wage replacement benefits. Any compensation already paid to a claimant which is directly attributable to a claimant's misrepresentations must be rescinded by the Board. The Board also has the discretionary authority to disqualify the claimant from receiving any future wage compensation benefits regardless of whether or not the claimant is subject to the mandatory penalty, even if the claimant has suffered a compensable injury. In addition, the Board may subject the claimant to an additional penalty up to the amount directly attributable to the false statement or representation" (Matter of Church v Arrow Elec., Inc., 69 AD3d 983  [internal quotation marks and citations omitted]).
The claimant is depicted in the SIE's video tape surveillance engaged in work activities at the home of an elderly family friend in the afternoon of November 16, 2009. The claimant is seen raking and sweeping leaves, and hosing down the homeowner's garage and driveway. At several points in the video, the claimant is seen bending to rake and bending over to pick up leaves. The claimant is depicted engaging in these activities for a total of approximately two hours. The claimant is not depicted using a cane while engaging in his work related activities. The claimant testified that earlier in the morning of November 16, 2009, he utilized a cane at IME appointment and is briefly seen in the carrier's video ambulating slowly outside of the IME's office. The claimant's contention that he did not need to use the cane every day and used it only for longer walks and to climb stairs is credible, especially when these statements are compared to the November 16, 2009, report of Dr. Barschi. In sum, the surveillance materials submitted by the carrier do not show the claimant performing any activities that are clearly inconsistent with his disability, or which he has asserted that he is unable to perform.
The claimant was asked at the March 22, 2010, hearing whether he performed "any other work, either on or off the books, that would include volunteer work and helping friend[s] and family members out with their businesses," to which he responded in the negative. A review of the surveillance materials submitted by the carrier supports a finding that claimant's response to this question did not constitute a material misstatement in violation of WCL § 114-a(1). Those surveillance materials show the claimant performing yard work at the private residence of an elderly friend. They do not show the claimant helping a friend or family member "out with their businesses," as counsel for the SIE specifically inquired. The record reflects that claimant responded honestly and accurately to the questions posed to him at the March 22, 2010, hearing (see Matter of Matter of Engoltz v Stewart's Ice Cream, 91 AD3d 1066 ).
Therefore, the Full Board finds that the record supports a finding that claimant did not violate WCL § 114-a(1).
ACCORDINGLY, the WCLJ reserved decision filed on August 24, 2010, is AFFIRMED. The case is continued.