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Case # 00018790
Date of Accident: 02/14/2000
District Office: NYC
Employer: AMR-American Airlines
Carrier: Hartford Accident & Indemnity
Carrier ID No.: W105001
Carrier Case No.: 570 C 08743/DXH
Date of Filing of Decision: 11/01/2013
Claimant's Attorney: Pyrros and Serres, LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

* This decision also pertains to the following case(s): 09613102

The Full Board, at its meeting held on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed November 16, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant violated Workers' Compensation Law (WCL) § 114-a.

The Workers' Compensation Law Judge (WCLJ) found, in regard to WCB Case # 00018790, that the claimant violated WCL § 114-a and imposed a discretionary penalty barring the claimant from receiving lost wage benefits after March 23, 2011. The WCLJ did not impose a mandatory penalty and marked the case for no further action. In regard to WCB Case # 09613102, the WCLJ resolved the Form C-8.1s in favor of the Special Funds Conservation Committee (Special Funds).

The Board Panel majority reversed, finding that the claimant did not violate WCL § 114-a in WCB Case # 00018790. The Board Panel majority also rescinded without prejudice the WCLJ's resolution of the Form C-8.1 in WCB Case # 09613102 in favor of the provider, returning the case to the WCLJ for further evidence.

The dissenting Board Panel member would affirm the WCLJ's finding that claimant violated WCL § 114-a.

The carrier filed an application for Mandatory Full Board Review on December 13, 2012, requesting that the Board find that claimant violated WCL § 114-a, and impose both a mandatory penalty and a discretionary penalty disqualifying claimant from receiving any further lost wage benefits.

The claimant filed a rebuttal on January 10, 2013, contending that the Board Panel majority correctly found that claimant did not violate WCL § 114-a.

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

FACTS

The claimant has two established workers' compensation claims. The first claim, WCB Case # 09613102, is established for a back injury arising out of a work accident on January 17, 1996 (1996 Claim). Liability for the claim was transferred to the Special Funds pursuant to WCL § 25-a pursuant to a Notice of Decision (NOD) filed on December 20, 2004.

The second claim, WCB Case # 00018790, is established for left shoulder and neck injuries arising out of a work accident on February 14, 2000 (2000 Claim). The claimant has been out of work due to that accident since August 2, 2002. No finding of permanency has been made in either claim.

On June 18, 2010, the self-insured employer (SIE) filed a Form C-8.1 [Notice of Treatment Issue(s)/Disputed Bill Issue(s)] in the 1996 Claim, asserting that a May 13, 2010, MRI performed by Dr. Schlusselberg was related to a 2009 non-work-related motor vehicle accident. The claimant testified at a hearing on November 16, 2010, that she was involved in a 2009 motor vehicle accident, but she did not injure any part of her body. The claimant then testified that she was admitted to the hospital as a precaution and the MRI was performed to determine whether she had injured any other part of her body. In an NOD filed on November 19, 2010, the WCLJ resolved the Form C-8.1 in favor of the SIE, finding that the claimant's no fault insurer had paid for the testing.

On August 11, 2010, the claimant filed a Form RFA-1 (Claimant's Request for Further Action) in the 2000 Claim, requesting a hearing regarding her physician's opinion that she was permanently totally disabled.

A hearing was scheduled for January 10, 2011, to consider the issue of permanency in the 2000 Claim. The claimant testified at the hearing on January 10, 2011, that she had not had any new accidents since her 2000 work injury. When questioned regarding an alleged motor vehicle accident, the claimant testified that she was involved in an accident, but stated that it did not "affect" her because it "wasn't impact." The claimant could not recall the year of the motor vehicle accident, but stated that it may have occurred in 2005, 2006 or 2007. The claimant testified that she did not suffer any injury as a result of the accident, but she went to the hospital and had an x-ray. The claimant then stated that she did not have an x-ray and went to the emergency room because she was so scared and traumatized as a result of the motor vehicle accident. The claimant stated that she did commence a lawsuit because her car was damaged, and received a $12,000.00 settlement, of which she received $8,000.00 after attorneys' fees. The claimant stated that she did not receive any medical treatment as a result of the motor vehicle accident because she did not get injured. The claimant also stated that she only went to the emergency room following the motor vehicle accident because she was concerned about her pre-existing work injuries. At the conclusion of claimant's testimony the WCLJ directed the claimant to produce information regarding her motor vehicle accident and resulting lawsuit.

Pursuant to the direction of the WCLJ, the claimant submitted a letter dated January 17, 2011, from Craig Davidowitz, Esq., her attorney in the lawsuit arising out of her motor vehicle accident, to her workers' compensation attorney. In his letter Mr. Davidowitz forwarded medical records relating to the accident, and advised that the matter was settled without the filing of a summons and complaint. Mr. Davidowitz also forwarded a copy of a closing statement indicating that the matter was settled for $12,000.00 on July 30, 2009.

The medical records submitted by Mr. Davidowitz include a February 15, 2009, emergency room report from New York Hospital Queens. The report indicated that the claimant presented with generalized low back pain and mild cervical pain, reporting a gradual, but constant onset. The claimant stated that she had no pre-existing injuries. The claimant was diagnosed as suffering from a back sprain and cervical strain.

The medical records also included several reports from Dr. Lerner, who also treated the claimant for her 2000 Claim injuries. In a report dated February 17, 2009, Dr. Lerner noted that the claimant reported radiating neck and low back pain, left leg numbness and left arm weakness with severe restriction of cervical and lumbar range of motion as a result of her motor vehicle accident. Dr. Lerner diagnosed the claimant as suffering from an exacerbation of lumbar and cervical radiculopathy, and advised the claimant to follow up with him in one week. The next two reports, dated March 10, 2009, and March 24, 2009, respectively, note no change in symptoms and continue to diagnose the claimant as suffering from an exacerbation. Dr. Lerner also referred the claimant to physical therapy, three times per week for six weeks. Finally, the reports included an MRI dated March 14, 2009, and an EMG/NCV test dated April 7, 2009.

At a hearing on February 7, 2011, in the 2000 claim, the claimant's attorney argued that the motor vehicle accident exacerbated the claimant's workers' compensation injuries and that the claimant's treating physician stated that the motor vehicle accident did not affect the claimant's disability. The WCLJ noted that Dr. Lerner did not reference the motor vehicle accident in any of the medical reports that he filed directly with the Board. In an NOD filed on February 11, 2011, the WCLJ noted that the carrier raised WCL § 114-a, and directed the claimant's attorney to submit the documentation regarding the claimant's motor vehicle accident to be scanned by the Board.

In an NOD filed on July 8, 2011, in the 2000 claim, the WCLJ found that the claimant violated WCL § 114-a and imposed a discretionary penalty barring the claimant from receipt of wage benefits after March 23, 2011. The WCLJ did not impose a mandatory penalty. Claimant sought administrative review of that decision.

At a hearing on August 15, 2011, in the 2006 claim, the WCLJ found "C-8.1 for carrier," and that finding was reflected in a decision August 18, 2011. The claimant sought administrative review of that decision.

LEGAL ANALYSIS

Violation of WCL § 114-a

"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" (WCL § 114-a[1]). 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 (Matter of Orens v Novello, 99 NY2d 180 [2002] [citations omitted]; see also Matter of Flow v Mark IV Constr. Co., 288 AD2d 779 [3d Dept 2001] [holding that phrase 'material fact' in section 114-a(1) is not unconstitutionally vague, 'has a common understanding and is used, without definition, in many other statutory schemes']). [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' (see Black's Law Dictionary 611 [7th ed 1999]); 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 [2003]).

In the present case, the claimant denied that she suffered any injuries as a result of the 2009 motor vehicle accident at both the November 16, 2010, hearing in the 1996 claim and the January 10, 2011, hearing in the 2000 claim. However, the medical evidence belies the claimant's testimony and supports a finding that she did not testify truthfully. Although the claimant first asserted that she went to the emergency room following the motor vehicle accident because she was scared and traumatized, the emergency room record indicates that she reported generalized head, neck and back pain. The claimant also testified that the only reason that she went to the emergency room was because she was concerned that the motor vehicle accident may have worsened her work injuries. However, the claimant denied to the emergency room staff that she suffered from any pre-existing injuries. Furthermore, the emergency room physician diagnosed the claimant as suffering from a back sprain and cervical strain as a result of the motor vehicle. Thus, the emergency room records indicate that, contrary to the claimant's testimony, the claimant was brought to the emergency room complaining of injuries as a result of the motor vehicle accident and was diagnosed with injuries as a result of that accident.

Additionally, a review of Dr. Lerner's reports indicates that the claimant had a substantial increase in symptomology following the motor vehicle accident. Prior to the motor vehicle accident, the claimant reported neck and left shoulder pain, but did not report any symptoms in her arms or legs. However, on February 17, 2009, the claimant reported radiating left leg numbness and headache following the motor vehicle accident, as well as left arm weakness. Dr. Lerner noted severe restriction of cervical and lumbar range of motion and diagnosed the claimant as suffering from exacerbation of her lumbar radiculopathy and cervical radiculitis. He advised the claimant to return for a follow up examination in one week. Previously, the claimant had been treating with Dr. Lerner approximately every six weeks.

Accordingly, the Full Board finds that the claimant violated WCL § 114-a, insofar as she made material misstatements concerning the injuries she suffered as a result of her February 2009 motor vehicle accident.

Mandatory and Discretionary Penalties

When the Board finds that the claimant has violated WCL § 114-a, it is "required to sanction claimant by rescinding the benefits which were directly attributable to such a misrepresentation" (Matter of Peguro v Halo's Rest., 24 AD3d 986 [2005]; see Matter of Hammes v Sunrise Psychiatric Clinic, Inc., 66 AD3D 1252 [2009]).

"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]).

In the present case, the claimant made false statements under oath regarding an unrelated accident in which she exacerbated her established work-related conditions. Her statements were thus material to her workers' compensation claims. However, the claimant's false statements did not result in her receiving any compensation which she would not otherwise have been entitled to. Therefore, the Full Board finds a mandatory penalty is not appropriate.

"Pursuant to Workers' Compensation Law § 114-a (1), the Board possesses the discretionary authority to impose the penalty of total disqualification from wage replacement benefits (see Matter of Peguero v Halo's Rest., 24 AD3d 986 [2005]; Matter of Lopresti v Washington Mills, 23 AD3d 725 [2005]). In ordering such a sanction, the Board must set forth an adequate explanation for its determination (see Matter of Jacob v New York City Tr. Auth., 26 AD3d 631 [2006] ; Matter of Lopresti v Washington Mills, supra at 726)" (Matter of Losurdo v Asbestos Free, Inc., 29 AD3d1072 [2006], lv denied 8 NY3d 805 [2007]).

In the present matter, although claimant violated WCL § 114-a(1) insofar as she made material misstatements concerning the injuries she suffered as a result of her February 2009 motor vehicle accident, she did was forthcoming about the occurrence of the motor vehicle and that she visited the emergency room after the accident. Under these circumstances, the Full Board finds that the appropriate penalty is disqualification from receiving lost wage benefits for a period of six months.

C-8.1s

With respect to the Form C-8.1(B) issues raised in WCB Case # 09613102, as found by the Board Panel Majority previously found, there is no rationale on the record for the WCLJ's finding that the C-8.1 forms should be resolved in favor of Special Funds. It cannot be assumed that the treatment to the claimant's back by Dr. Zenetos was not causally related to the 1996 work accident merely because the treatment occurred subsequent to the unrelated 2009 motor vehicle accident. Therefore, the Full Board finds that the Form C-8.1 findings are rescinded, without prejudice, and the case returned to the trial calendar to develop the record on the issue.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on July 8, 2011, in WCB Case # 00018790 is MODIFIED to find that based on claimant's violation of WCL § 114-a, a discretionary penalty of disqualification from receiving lost wage benefits for a period of six months is hereby assessed. The case is continued to the trial calendar for further development of the record on the issue of claimant's entitlement to further awards consistent with this decision.

The WCLJ decision filed on August 18, 2011, in WCB Case # 09613102 is RESCINDED, without prejudice. The case is to be reopened and returned to the trial calendar to develop the record on the Form C-8.1 issues.