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Case # 70012917
Date of Accident: 09/05/2000
District Office: Rochester
Employer: Nu-Kote
Carrier: Special Funds Cons. Comm.
Carrier ID No.: W997001
Carrier Case No.: 086-127647
Date of Filing of Decision: 12/11/2013
Claimant's Attorney: E Michael Cook PC
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board at its meeting on November 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed February 22, 2013.

ISSUE

The issue presented for Mandatory Full Board Review is whether a discretionary penalty of total disqualification was properly assessed against the claimant based on her violation of Workers' Compensation Law (WCL) § 114-a.

The Workers' Compensation Law Judge (WCLJ) determined that a discretionary penalty applies effective March 3, 2011, and directed no further action.

The Board Panel majority modified the WCLJ's decision to indicate that the claimant is barred from receiving any further wage replacement benefits on this claim effective March 3, 2012. The Board Panel majority determined that the record supports the WCLJ's finding that the claimant violated WCL § 114-a by misrepresenting her job search and falsifying her job search records in furtherance of that misrepresentation, and that the imposition of a discretionary bar from receiving any further wage replacement benefits on this claim is the appropriate penalty under WCL § 114-a.

The dissenting Board Panel member determined that the claimant's testimony was ambiguous with regard to her job search efforts and related documentation, and that claimant lacked intent to violate WCL § 114-a based on his assessment of her demeanor, candor and difficulty with the English language. Citing WCL § 123, the dissenting Board Panel member posits that this matter should be returned to the trial calendar for the claimant's unequivocal testimony on the issue of her violation of WCL § 114-a.

In her application for Mandatory Full Board Review, the claimant asserts that a discretionary penalty of total disqualification in this case is not warranted. The claimant contends that a discretionary penalty for a reasonable period would be appropriate herein as the claimant was suffering from depression as a result of the medication she was required to take due to the prolonged physical pain she endured due to her compensable condition. The claimant also cites her difficulty with English as a possible explanation for the discrepancies between her testimony and her written statements concerning her job search efforts. The claimant notes that she did not complete the job search questionnaire.

In its rebuttal, Special Funds argues that a discretionary penalty of disqualification subsequent to March 3, 2012, is appropriate as the claimant misrepresented the truth by submitting evidence to the Board and testifying that she applied for work in person at a number of different locations during a period in which she later admitted she was out of the country. Special Funds posits that the WCLJ was in the best position to assess the claimant's testimony, and that the claimant's contention that cognitive issues caused her false testimony is without merit.

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

FACTS

This claim is established for an injury to the claimant's low back that occurred on September 15, 2000. Liability in this case was transferred to the Special Funds Conservation Committee (Special Funds) on September 5, 2007.

A July 22, 2011, hearing was scheduled, but was cancelled by the claimant as she was out of the country in Bosnia. Special Funds sent a letter to the Board on July 18, 2011, postponing the hearing at the claimant's behest.

On October 26, 2011, Special Funds filed an RFA-2 (Request for Further Action by Carrier/Employer) with the Board contending that payments to the claimant should be suspended as of October 21, 2011, as the claimant is no longer attached to the labor market.

In response, the claimant filed a C-258 (Claimant's Record of Job Search Efforts/ Contacts) with the Board on November 8, 2011, in which she indicated that she contacted a multitude of employers between January 3, 2011, and November 1, 2011. In particular, the form indicates that the claimant made contact with 16 different employers between July 15, 2011, and August 15, 2011.

A hearing was held on December 6, 2011, on the issue of labor market attachment, and the claimant submitted an updated list of names of the employers she applied to for work. Special Funds objected to the claimant's submission, as the list failed to include who was contacted, what type of contact was made, the names of the individuals contacted, the addresses and telephone numbers of those contacted, the type of job being looked for and responses from the employers. The case was continued to allow the claimant to produce clarifying job search evidence. In the resulting decision filed on December 9, 2011, the WCLJ, among other findings, continued the case to consider claimant's clarifying job search information.

In an amended and updated C-258 filed with the Board on January 6, 2012, the claimant indicated contact with multiple employers between January 3, 2011, and January 3, 2012. In particular, the form indicates that the claimant made in-person contact with 16 different employers between July 15, 2011, and August 15, 2011.

At a hearing held on January 6, 2012, claimant testified on direct-examination, initially without the aid of an interpreter, that she has been searching for work since last year (2011), that no one is hiring and that her husband takes her to these places of employment on his day off. On cross-examination, the claimant testified that she began her search on January 3, 2011, and has continued it through January 3, 2012. Her ability to search for work is limited to the days that her husband has off as he drives her to the places of potential employment. She usually searches for work once a week, on Sunday, when her husband does not work. She could not search for work between the middle of July 2011 and the middle of August 2011, as she was out of the country in Bosnia. She had to cancel a hearing as it was scheduled for a date when she was in Bosnia. The claimant then proceeded to testify that she applied in person for several jobs on July 12, 19, 26, and August 10, and 16, 2011. The claimant, however, stated that these applications were done "before and after" she left town for her month long trip to Bosnia.

On redirect, the claimant testified that her native language is Bosnian. At that point, after additional questioning concerning the timing of her applications and the accuracy of her job search list, a Bosnian interpreter was brought in by the WCLJ to assist the claimant. The claimant then testified that she filled out a record of jobs looked for, that she personally completed the hand-written document submitted to the Board and she went back to these places to get additional information requested by the Board. The claimant reiterated that all applications during the relevant period of the middle July to the middle August were submitted "before and after" leaving for Bosnia.

At the conclusion of the hearing, Special Funds raised the issue of a violation of WCL § 114-a. The WCLJ found based on the claimant's testimony that she made a materially false statement in violation of the statute. The WCLJ did not assess a mandatory penalty. The WCLJ found that a discretionary penalty should be assessed, but questioned the appropriate length of the penalty. The WCLJ suspended benefits as of the date of the hearing pending further development of the record on the length of the discretionary penalty.

In the resulting decision filed on January 11, 2012, the WCLJ found that the claimant violated WCL 114-a, suspended benefits to the claimant, closed the record on the question of a discretionary penalty and continued the case to March 14, 2012, to consider each side's argument with respect to the assessment of a discretionary penalty under WCL § 114-a.

At a hearing held on March 14, 2012, the WCLJ assessed a discretionary penalty of disqualification from March 3, 2011, the date the claimant's job search documents were submitted to the Board. The WCLJ specifically stated on the record that the discretionary penalty assessed is a bar from receiving any further wage replacement benefits on this claim. The resulting decision was filed on March 19, 2012.

LEGAL ANALYSIS

"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 [2010] [internal quotation marks and citations omitted]).

The Full Board finds, upon review of the evidence of record, that the claimant violated WCL 114-a, and that a discretionary penalty of total disqualification of benefits is appropriate. The updated C-258 submitted by claimant to the Board on January 6, 2012, indicates that she walked into 24 separate places of employment to submit a job application on July 12, 2011 (4), July 19, 2011 (4), July 26, 2011 (4), August 2, 2011 (4), August 10, 2011 (4), and August 16, 2011 (4). The claimant, however, testified that she was in Bosnia between the middle of July and the middle of August (she did not specify the exact dates). At a very minimum, the claimant falsely testified that she walked into 16 places of employment between July 19, 2011, and August 10, 2011, in Rochester, New York, during a period that she testified to being in another country. Documentary evidence in the file indicates that a July 22, 2011, hearing had to be cancelled at the claimant's request, because she was out of the country. The claimant was given every opportunity to explain this discrepancy; her attorney attempted to rehabilitate her testimony and the WCLJ brought in a Bosnian interpreter to eliminate any potential language barrier, all to no avail. The claimant provided the same incoherent and disjointed explanation each time she was asked to explain the discrepancy between her testimony and the documentary evidence, namely that she applied for the at issue jobs "before and after" her trip to Bosnia.

The Full Board, however, finds that the effective date of the discretionary penalty should be set as of January 6, 2012, not March 3, 2012, as that is the date that the claimant (1) falsely testified before the Board and (2) submitted documentary evidence that specifically indicated that she applied for jobs in person in Rochester, New York, while physically present in Bosnia. No documentary evidence was submitted, and no hearings were held, on March 3, 2011, or 2012 (the dates selected by the WCLJ and the Board Panel majority, respectively, for the effective date of the discretionary penalty).

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on March 19, 2012, is MODIFIED to set the effective date of the discretionary penalty as of January 6, 2012. No further action is planned by the Board at this time.