Skip to Content

Workers' Compensation Board

The Staten Island service center has resumed normal operations.

Language Assistance: (877) 632-4996 | Language Access Policy

 


Case # G0290125
Date of Accident: 06/30/2008
District Office: NYC
Employer: Larchmont Village
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 62987904
Date of Filing of Decision: 02/07/2018
Claimant's Attorney: Bartlett McDonough Bastone & Monaghan LLP
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on December 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed April 6, 2017.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claimant made a material misrepresentation in violation of Workers' Compensation Law (WCL) 114-a; and
  2. whether the evidence of record supports a finding of a 10% loss of wage earning capacity (LWEC).

The Workers' Compensation Law Judge (WCLJ) found that the claimant's LWEC is 10% and that claimant violated WCL 114-a during his testimony on July 23, 2012.

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member would find that claimant did not violate WCL 114-a.

The claimant filed an application for Mandatory Full Board Review on April 27, 2017, arguing that he did not violate WCL 114-a.

The State Insurance Fund (SIF) filed a rebuttal on May 8, 2017.

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

FACTS

This case is established for a work-related injury to the claimant's back sustained on June 30, 2008, while he was employed as a Sergeant with the Larchmont Police Department. The claimant underwent causally related lumbar fusion surgery on January 17, 2012, and retired from his employment with the employer effective February 28, 2013.

At a hearing on July 23, 2012, the claimant testified that he was injured at work on June 30, 2008. The claimant was then asked "[s]ince January of this year, January 17th, have you done any work at all?" The claimant responded to this question in the negative. When asked if he had inquired about a return to work with the employer in light duty, the claimant testified that his doctor doesn't want him to do any light duty as he can't stand for a period of time and can't walk, noting that "most of the time I lay down." In the resulting decision filed July 26, 2012, the WCLJ held the period from July 1, 2008, to January 1, 2012, in abeyance on the question of lost time, issued awards to the claimant at the temporary total disability rate of $500.00 from January 17, 2012, to April 18, 2012, subject to reimbursement to the employer, and from April 18, 2012, to July 24, 2012, at the tentative rate of $306.23, subject to reimbursement to the employer.

At a hearing on August 18, 2014, the claimant testified that he is presently working as a self-employed attorney, and that he has been practicing as an attorney since 2000.

On cross-examination, the claimant testified that when he retired from his employment with the employer, he took a regular retirement as his disability retirement application was denied. He worked for the Larchmont Police Department for 22 years, and could have retired after 20 years, but he originally intended to work for many more years. When questioned by the WCLJ, the claimant indicted that following his back surgery, his treating physician advised him that he could no longer work as a police officer. The claimant is not receiving social security disability benefits. The claimant testified that he receives a $4,500 monthly pension benefit.

On re-direct, the claimant testified that his initial request to return to work in light duty was denied as his position as Patrol Sergeant required that he be on the road, and it was only after the parties entered into a stipulation to facilitate his retirement that he was permitted to work in light duty. The claimant's "non-accidental retirement" application is currently pending in front of the review Board. Claimant noted that working light duty, eight hours a day behind a desk, was extremely painful, as was commuting one hour both ways each day. The WCLJ noted that an August 12, 2014, C-4.3 filed by Dr. Girardi indicates that the claimant is completely disabled from returning to work as a police officer and his disability is permanent. Claimant testified that he wanted to continue to work for several more years, but couldn't due to his compensable back injury. He considered staying on the job for a chance at a promotion to Lieutenant, but was disqualified due to his inability to work full duty.

A Captain in the Larchmont Police Department also testified on August 18, 2014. The Captain testified that the claimant retired on February 28, 2013, accepting a regular service retirement. A stipulation concerning claimant's retirement was signed by the claimant and the Larchmont Police Department on February 13, 2013.

On cross-examination, the Captain testified that he was aware that the claimant suffered a back injury that resulted in him having surgery, and that the claimant worked in light duty capacity at the police desk answering phones and dispatching calls of service. The claimant was not asked to retire due to the department's need to have a sergeant on the road. When asked by the WCLJ, the Captain confirmed that sergeants are permitted to work light duty in the Larchmont Police Department, and the claimant did in fact work light duty. The claimant returned to work on September 29, 2012, and worked light duty without any further restrictions from his doctor. The Captain testified that the claimant's last day of work was in February of 2013.

In a decision filed on February 26, 2015, the WCLJ concluded that the claimant involuntary retired from his employment with the Larchmont Police Department on or before February 28, 2013, and the claimant has a permanent partial disability.

In a decision filed on June 3, 2015, the WCLJ concluded, per the stipulation of the parties, that the claimant is permanently partially disabled and is entitled to continuing awards at the tentative permanent partial disability rate of $306.23.

At a hearing held on March 30, 2016, the claimant testified that he is 50 years old, has a law degree from Pace University, and was a police officer for the Village of Larchmont for a total of 22 years, 12 as a sergeant. He reads, writes and speaks English well. He presently works part-time as an attorney.

On cross-examination, the claimant testified that he has worked as an attorney since January 2001. He did not recall his testimony at the prior hearing held on July 23, 2012. He was specifically asked if he recalled being asked by the WCLJ if he had done any work at all since January 17, 2012, and his response was that he did not. The claimant responded that he did not recall, but he was "out of work from the Village of Larchmont at that time" if that is what SIF's attorney was referring to, adding that he did not return to work until October. When asked a third time if he recalled the questioning, the claimant indicated the he did not, but that he "must have been doing something." The claimant also testified that he did not recall being asked about a return to work with the employer in light duty, or his response to that question. The claimant confirmed that his gross income from 2012 from his law practice was $68,483. The claimant again was asked and indicated that he did not recall his July 23, 2012, testimony, in which he denied a return to any work. It was at this time that SIF alleged that the claimant violated WCL 114-a based on misrepresentations at the July 23, 2012, hearing. The claimant conceded that his income tax return for 2012 indicates that he travelled 24,000 miles by car that year in connection with his law practice. Claimant indicated that three times a week in 2012 he would travel 200 miles round trip in connection with per diem work he did on behalf of Chase Bank. This work, and the associated travel, also occurred in part of 2011 and part of 2013. The claimant testified that he would relieve the stress off of his back during these trips by stopping during each trip. The claimant's official date of retirement was February 28, 2013, and he received his first pension check in March 2013. His pension is $62,000 a year. He continues to receive his pension while receiving proceeds from his law practice. He received $56,225 from his law practice in 2013 and $40,891 in 2014. The claimant is not presently receiving social security.

In a decision filed on April 4, 2016, the WCLJ directed the carrier not to continue payments, closed the record and directed the parties to submit memoranda of law within 45 days. The decision notes that SIF raised the issue of WCL 114-a violation and continued the case.

In a reserved decision filed on September 14, 2016, the WCLJ determined that the claimant's LWEC is 10% based on his age, education and work experience. The WCLJ also concluded that the claimant violated WCL 114-a when he made a false statement as to a material fact for the purpose of obtaining benefits during his testimony on July 23, 2012. The WCLJ imposed a mandatory penalty from that date, and a discretionary penalty disqualifying the claimant from receiving further indemnity benefits.

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]).

The Full Board finds that the claimant knowingly made a false statement in order to obtain workers' compensation benefits when, at the July 23, 2012 hearing, he denied having done any work at all since January 2012. The claimant was a police officer, as well as an attorney, and certainly understood the question posed to him.

Therefore, the Full Board finds that claimant violated Workers' Compensation Law 114-a. Based on claimant's false statement, which was made while under oath at a hearing before the Board, the Full Board finds that a discretionary penalty disqualifying the claimant from receiving further indemnity benefits is warranted.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on September 14, 2016, is AFFIRMED. No further action is planned at this time.