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Case # G0402115
Date of Accident: 02/17/2011
District Office: Peekskill
Employer: Catskill Regional OTB
Carrier: Zurich American Insurance Co.
Carrier ID No.: W228001
Carrier Case No.: 2440138958
Date of Filing of Decision: 07/17/2013
Claimant's Attorney: Freedman, Wagner, Tabakman & Weiss
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on June 18, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed November 27, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant made a material misrepresentation in violation of Workers' Compensation Law (WCL) § 114-a.

The Workers' Compensation Law Judge (WCLJ) determined that the claimant did not violate of WCL § 114-a.

The Board Panel majority modified the WCLJ's decision, finding that the claimant violated WCL § 114-a and assessed a discretionary penalty of total disqualification.

The dissenting Board Panel member concluded that the claimant did not knowingly make a material misrepresentation in order to obtain compensation benefits,

The claimant filed an application for Mandatory Full Board Review on December 11, 2012.

The carrier filed a rebuttal on January 9, 2013.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

In a C-3.0 (Employee Claim) dated March 31, 2011, and filed with the Board on April 1, 2011, the claimant alleged that she sustained left knee and left ankle injuries on February 17, 2011, at 2:30 p.m., following a slip and fall accident in the employer's parking lot. The claimant specifically indicates on the form that she "slipped on ice/snow in parking lot after returning from the post office." The claimant was employed by Capitol Region OTB as a receptionist. The claim was indexed against the employer and carrier on June 30, 2011, as evidenced by the filing of an EC-84 (Notice of Indexing) on the same date.

At a hearing on December 14, 2011, the carrier raised the issues of accident, notice, causal relationship and WCL § 114-a. The WCLJ precluded the carrier from raising the issues of accident and notice based on its failure to file a C-7 (Notice of Controversy) (see WCL § 25[2][b]), but found that the carrier could raise causal relationship as a defense. The WCLJ directed the claimant to produce clarifying prima facie medical evidence and continued the case on the issues of "accident, notice and causal relationship" (transcript, 12/14/11 hearing, p. 3-4). The findings made at the December 14, 2011, hearing were reflected in a December 19, 2011, decision.

The claimant sought administrative review of the WCLJ's December 19, 2011, decision, arguing that further development of the record is not required. The claimant argued that the carrier waived its defenses by failing to timely controvert the claim and that the case should be established for a left knee injury. The claimant also contends that it was inappropriate for the carrier to raise the WCL § 114-a issue as there is no present claim for a continuing disability. The carrier did not file a rebuttal.

The claimant testified at a hearing held on January 30, 2012, that she was employed as a secretary by the employer on February 17, 2011, and she was injured when she slipped and fell in the employer's parking lot on ice upon exiting her car on that date. She has not missed any time from work as a result of her accident. The claimant received permission from the employer to retrieve her car from a "car shop" in Nanuet and received a ride to the shop from a co-worker. She did not proceed immediately to her place of employment after picking her car up, but instead "went directly to the post office to check mail for the afternoon which I have done every day since I've been working there." The accident occurred in the employer's parking lot after she had gone to the post office. The claimant testified that she checks the mail in the morning and if there is none that she checks again in the afternoon.

On cross-examination, the claimant reiterated that she went to the post office across the street from her place of employment every day for the employer. She was not specifically asked to go to the post office that day, but she did so as it has been part of her job since being hired in June of 2001. The co-worker who drove her to get her car also goes to the post office when she is working, but only in the morning. The co-worker was working on the day the claimant was injured and went to the post office in the morning. When the co-worker is not at work, claimant will go to the post office in the morning and the afternoon. She went to the post office every afternoon until asked not to by the employer following the February 17, 2011, incident. The claimant also testified that the only conversation that she had with her co-worker following the accident was to inform her that the injury occurred and she was injured, and they discussed the compensability of the claim, but she did not admit fabricating a story involving going to the post office after picking up her car.

The claimant's co-worker also testified on January 30, 2012, that she is employed by the employer as a receptionist and has worked for the employer since March 2000. The co-worker was asked to give the claimant a ride to pick up her car at Grand Price Chevrolet in Nanuet on February 17, 2011. The co-worker went to the post office every Tuesday, Wednesday and Thursday and the claimant went to the post office on Mondays and Fridays when she wasn't working. The co-worker went to the post office on the date the claimant sustained her injuries. Her regular routine involves going to the post office only in the morning unless specifically asked to go in the afternoon due to special circumstances. The co-worker does not believe that the claimant went to the post office after dropping her off to pick up her car. The C-3 completed by the claimant indicating that she sustained injuries in a slip and fall after returning to work after stopping at the post office was a mistake. The co-worker opined that the claimant may have stopped at McDonald's to pick up coffee after picking up her car, as she heard something to that effect. The claimant informed the co-worker that she did not stop at the post office after picking up her car as was noted in the C-3 form, explaining that she felt she had to say that on the form as "it would make it more true that she was working."

On cross-examination, the co-worker testified that she went back to work after dropping off the claimant to get her car and did not personally know if the claimant actually went to the post office thereafter. The co-worker's belief that claimant did not stop at the post office is based solely on what the claimant subsequently told her. She testified that she dropped the claimant of at around 3:10 p.m. and she and the claimant returned to work at approximately the same time, at around 3:30 p.m. or 3:40 p.m. The co-worker was of the opinion that there was no mail to pick up that afternoon as she had picked it up in the morning and there was no special circumstances warranting an afternoon pick up. Her conversation with the claimant concerning her purported trip to the post office occurred sometime after March 2011. There was no question in her mind that the claimant sustained injuries in a slip and fall accident in the parking lot on February 17, 2011.

The manager of the employer's Human Resources Department also testified at the hearing held on January 30, 2012, that she was employed by the employer on February 17, 2011, and became aware of the claimant's accident in the parking lot on that date. She was aware that the claimant went to pick up her car in Nanuet prior to sustaining her injuries. The claimant was not asked to stop at the post office on her way back as the claimant's co-worker is tasked with that job on Tuesdays, Wednesdays and Thursdays. The manager testified that the claimant returned to work after picking up the car, and after stopping at McDonald's to get her a cup of coffee.

On cross-examination, the witness testified that she was present went the claimant asked "the boss" for permission to pick up her car in Nanuet and she was not instructed at that time to stop at the post office. The claimant fell in a parking lot used by the employer and other entities, but that OTB employees are not specifically designated to park in that parking lot. The claimant's accident occurred at 3:30 p.m. upon returning to work after picking up her car. The claimant returned to work solely to pick up a back-pay check and her back pack, and deliver a cup of coffee to her. An accident report prepared by the claimant a day after the accident indicating that the injury occurred at 2:30 p.m., and not 3:30 p.m., would surprise her as she personally observed the claimant leaving to pick up her car with the co-worker at 2:45 p.m. The witness testified that she felt that her time line of the accident was correct, and the accident report was incorrect.

In a reserved decision filed on February 2, 2012, the WCLJ established the instant case for injuries to the claimant's left knee and left ankle, found no compensable lost time, found no violation of WCL § 114-a, and directed no further action.

In a request for administrative review filed with the Board on March 2, 2012, the carrier argued that the claimant's false statements in the C-3.0 and during her sworn testimony constitute a violation of WCL § 114-a, and the claimant should be precluded from receiving benefits for lost time or a schedule loss of use. The claimant filed a timely rebuttal.

LEGAL ANALYSIS

"If for the purpose of obtaining compensation pursuant to [WCL § 15], or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In addition, as determined by the board, the claimant shall be subject to a disqualification or an additional penalty up to the foregoing amount directly attributable to the false statement or representation" (WCL § 114-a[1]).

Here, the claimant testified that she went to the post office for the employer every afternoon for eleven years. The co-worker, testifying on behalf of the employer, had no personal knowledge as to whether or not the claimant stopped at the post office on the date in question. The co-worker gave indication that the claimant subsequently advised her that she had not, in fact, gone to the post office on that date, but this discrepancy merely created an issue of fact. The testimony of the employer's manager did not bolster the employer's position in the case as she conceded that her testimony with regard to the timing of the accident was in conflict with what she had written on the accident report on the day after the occurrence of the compensable accident.

Furthermore, whether or not the claimant accurately asserted that she stopped at the post office for the employer prior to returning to work on the date in question has no direct bearing on either the establishment of the claim or the claimant's entitlement to benefits. Whether or not the claimant took a "detour" during her commute from the car dealership to the employer's premises, there is no dispute that the claimant had returned to the employer's premises and was within the precincts of the employer's parking lot at the time of the occurrence of the accident herein. Additionally, as testified to by the claimant and as confirmed by the contents of the accident report, the claimant was still "on the clock" at the time of the accident.

The Full Board finds that the claimant was truthful in testifying to having stopped at the post office (on behalf of the employer) on her way back to the employer's premises. The Full Board further finds and that the accuracy of claimant's testimony does not have a direct bearing on the compensability of the claim and, therefore, is not properly a basis for the carrier's contention of a violation of WCL § 114-a. The claimant had permission from the employer to pick up her car at the dealership during her work shift, the claimant had returned to the employer's premises while her work shift was still active (whether or not she made a stop on the return trip) and the claimant was injured in the employer's parking lot in the course of her resumption of her work day.

Therefore, the Full Board finds that claimant did not knowingly make a make a material misrepresentation in order to obtain compensation benefits in violation of WCL § 114-a.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on February 2, 2012, is AFFIRMED. The issues raised in claimant's request for review of the WCLJ decision filed December 19, 2011, are moot. No further action is planned by the Board at this time.