The Full Board, at its meeting on June 18, 2013, considered the above captioned case for mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed September 14, 2012.
The issue presented for Mandatory Full Board Review is whether the pro se claimant violated Workers' Compensation Law (WCL) § 114-a.
Although he did not find that the claimant had violated WCL § 114-a, the Worker's Compensation Law Judge (WCLJ) disallowed the claim for a consequential neck injury.
The Board Panel majority modified the WCLJ's decision to find that the claimant violated WCL § 114-a. The majority imposed a mandatory penalty disqualifying claimant from receiving benefits from May 19, 2011, to June 29, 2011, and a discretionary penalty permanently disqualify the claimant from receiving lost wage replacement benefits thereafter.
The dissenting Board Panel member found that the claimant did not make a willful misrepresentation in violation of WCL § 114-a.
The pro se claimant filed an application for Mandatory Full Board Review on October 12, 2012. A copy of the application was forwarded by the Board to the carrier on December 5, 2012, with a direction that the carrier had 30 days to file a rebuttal.
The carrier filed a rebuttal on December 6, 2012.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for an injury to the claimant's back that occurred on June 17, 1990. In a decision filed on July 9, 1993, the claim was amended to include depression. The claimant was classified with a permanent total disability on November 9, 1994.
Claimant subsequently sought to have the case amended to include consequential neck injury.
A hearing was held on May 19, 2010, to address a number of disputed bills and treatment issues. The claimant testified at this hearing as follows:
Q: In regards to the neck, did you have an accident prior to or subsequent to this regarding the neck, such as an automobile accident?
A: I did. In 2002.
Q: Did you have a claim for the neck as a result of that accident?
Q: Did you ever settle anything as a result of that?
A: Well, my car was not even four weeks old, and because it was damaged -
Q: Injury to your body?
Q: You never made a claim for your neck?
In the resulting decision, filed on May 24, 2010, the WCLJ resolved disputed treatment issues and bills in favor of the medical providers.
In a May 26, 2010, narrative report, Dr. Pearl stated: "It is my opinion that the symptoms in the [claimant's] neck are related to the lower back as the pain in the back and the stress of the lower back induced the musculature in the cervical region to be adversely affected causing a pain syndrome."
In a number of C-8.1 (Notice of Treatment Issues/Disputed Bill Issues) forms filed in June 2010, the carrier denied treatment to the claimant's neck as an unestablished site of injury.
At a hearing held on July 14, 2010, the WCLJ found prima facie medical evidence for a consequential injury to the claimant's neck, based upon Dr. Pearl's May 26, 2010, report. In the resulting July 19, 2010, decision, the WCLJ directed the carrier to produce an independent medical examination within 45 days on the issues of a consequential neck injury and the claimant's need for migraine medication.
On August 31, 2010, Dr. Illman, the carrier's consultant, examined the claimant and issued a report.
At a hearing on October 20, 2010, counsel for the claimant raised WCL § 137, as the IME-4 report was not forwarded to the attorney's office. The WCLJ precluded Dr. Illman's report pursuant to WCL § 137 and amended the claim to include a consequential injury to the claimant's neck. The carrier raised the issue of a WCL § 114-a violation. The resulting decision was filed on October 25, 2010.
In its November 10, 2010, application for administrative review of the WCLJ's October 25, 2010, decision, the carrier attached evidence of a no-fault claim file with respect to claimant's 2002 motor vehicle accident. The carrier argued that the evidence submitted revealed that the claimant made false statements of material fact on May 19, 2010, regarding her April 29, 2002, motor vehicle accident. The carrier asserted: "She was asked specifically if there were any injuries and she said no. She was then specifically asked if there was a neck injury and she said no. She testified that she made a claim only for property damage to her automobile which was only four weeks old." The carrier contended that this testimony constituted a violation of WCL § 114-a, such that the claimant should be disqualified from any future benefits. Alternatively, the carrier argued that the establishment of the consequential neck injury should be reversed. The carrier also asserted that Dr. Illman's medical report should not be precluded, as the violation of WCL § 137 was not "substantial."
In her December 10, 2010, rebuttal to the carrier's application for review, the pro se claimant asserted that her neck injury predated her April 29, 2002, motor vehicle accident. In support, the claimant attached a March 26, 2002, narrative report in which Dr. Schwartz indicated that the claimant "notes some neck pain."
In a letter dated December 9, 2010, the claimant argued that she had treated with Dr. Schwartz for shoulder and neck pain as early as 2001. A referral to Dr. Cappellino, an orthopedist, revealed that the probable source of the claimant's neck pain was "due to the fact that my neck had no curve to it probably due to longstanding spasms of the area." The claimant asserted that she underwent left rotator cuff surgery in November 2001, through her private insurance company. The claimant stated that she received a large file from the carrier that contained information regarding her April 29, 2002, motor vehicle accident. The file also contained information regarding another claimant, whose information has been redacted from the rebuttal.
In a decision filed on March 8, 2011, the Board Panel modified the WCLJ's October 25, 2010, decision to hold the issue of a consequential neck injury in abeyance pending further development of the record on the issues of a WCL § 114-a violation and "whether the claimant's neck condition was a consequence of her work-related back injury from June 17, 1990."
At a hearing held on May 2, 2011, the WCLJ discharged the claimant's attorney. The claimant asserted that her neck was injured prior to her April 29, 2002, motor vehicle accident. She explained that she underwent shoulder surgery in November 2001, such that her neck "had already been operated on before the accident." The claimant stated that her neck was "hurt worse" and she received further treatment as a result of the motor vehicle accident. She explained that the surgery was paid for by her private insurance company and that she only treated through the workers' compensation carrier for her back. In the resulting decision, filed on May 5, 2011, the WCLJ continued the case and directed the claimant to consult with a criminal attorney and "to produce all papers in connection with 4/29/02 Motor Vehicle Accident, including transcript of deposition testimony in Third Party Action."
The record contains a September 23, 2003, deposition that was taken in connection with a lawsuit concerning the claimant's April 29, 2002, motor vehicle accident. The claimant testified that she went to the hospital the night of the accident and advised hospital personnel that she had a "very bad headache" and pain in her abdomen, neck, shoulders, back, and jaw. The claimant responded in the negative when asked if she had injured her neck prior to April 29, 2002. She testified that she was hospitalized in August 1994 following a motor vehicle accident in the same year due to posttraumatic stress, insomnia, and severe headaches. The claimant explained that prior to April 29, 2002, she underwent "front and back rotating cuff repair" procedures on her left shoulder, but that she did not have surgery performed on her neck.
At a hearing held on June 24, 2011, the pro se claimant produced documents with respect to her April 29, 2002, motor vehicle accident. The claimant explained that she was also involved in a motor vehicle accident and third party settlement in 1994. She stated that her neck pain began sometime between November 2000 and February 2001, due to problems with her spine and a lack of a curve in her neck. Following a discussion off the record, the WCLJ stated: "I am convinced that the claimant has made evasive, inconsistent and potentially fraudulent statements, particularly in connection with the injuries she sustained in the April 29, '02 motor vehicle accident, including injuries to the neck, of a worsening of injuries to the neck, which claimant finally admitted to at the hearing of May 2, 2011." Although he did not find that the claimant had violated WCL § 114-a, the WCLJ disallowed the claim for a consequential neck injury. The resulting decision was filed on June 29, 2011.
WCL § 114-a(1) provides: "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." The plain language of this section does not limit the meaning of "material." "Accordingly, the usual and commonly understood meaning of the word material is all that the statute intends. [A] fact is material for purposes of section 114-a(1) so long as it is significant or essential to the issue or matter at hand; therefore, a false statement need not affect the dollar value of an award to be material within the meaning of section 114-a(1)" (Matter of Losurdo v Asbestos Free, Inc., 1 NY3d 258  [internal citations and quotation marks omitted]).
The Full Board initially finds, that although the pro se claimant did not serve a copy of her application for Mandatory Full Board Review upon the carrier, the Board sent an EOA-6 letter to the parties on December 5, 2012, in which it notified the carrier that the claimant had filed an application and that it had 30 days in which to file a rebuttal. The carrier's rebuttal was timely received by the Board, such that "all parties of interest have had a full and meaningful opportunity to submit opposing arguments" (Matter of WTC Volunteer, 2012 NY Wrk Comp 0475105; Matter of Greenough v Niagara Mohawk Power Corp., 45 AD3d 1116 ). As such, the claimant's application should be considered.
At the hearing held on May 19, 2010, the claimant was asked: "In regards to the neck, did you have an accident prior to or subsequent to this regarding the neck, such as an automobile accident?" She replied: "I did. In 2002." This testimony unequivocally establishes that the claimant was clear and upfront with respect to her prior neck injury. Moreover, the carrier then asked the claimant if she had "made a claim for her neck," to which she replied in the negative. As the claimant has repeatedly emphasized, she did not make a workers' compensation claim with respect to her prior neck injury. It is apparent that the claimant understood the carrier's question to be an inquiry as to whether she filed a claim for workers' compensation with respect to the neck injury she sustained as a result of the April 29, 2002, motor vehicle accident, and not as to whether she filed a civil suit or alleged a neck injury due to the accident. At the hearing held on May 2, 2011, the claimant further explained that although she experienced neck pain prior to the April 29, 2002, motor vehicle accident, her neck was "hurt worse" and required additional treatment as a result of the accident. The claimant reiterated that she did not seek treatment through the workers' compensation carrier with respect to her neck condition subsequent to the 2002 motor vehicle accident. The claimant also explained at the June 24, 2011, hearing that she began experiencing neck pain sometime between November 2000 and February 2001, as a result of problems with her spine. Therefore, claimant did not attempt to conceal the neck injury she incurred as a result of her April 29, 2002, motor vehicle accident.
Based upon the above, the Full Board finds that the claimant did not knowingly make a false statement or misrepresentation in order to obtain compensation benefits in violation of WCL § 114-a.
ACCORDINGLY, the WCLJ decision filed on June 29, 2011, is REVERSED. The case is continued.