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Workers' Compensation Board

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Case # G0426430
Date of Accident: 02/28/2011
District Office: Albany
Employer: Miller Druck Specialty Contrac
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 64785942
Date of Filing of Decision: 03/24/2017
Claimant's Attorney: Dennis Kenny
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on February 28, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on September 21, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant was attached to the labor market during the period from March 14, 2014, to October 1, 2015.

The Workers' Compensation Law Judge (WCLJ), among other things, awarded benefits for the period from March 14, 2014, to March 16, 2015, at the temporary partial disability rate of $642.77 per week.

The Board Panel majority affirmed the WCLJ decision and found that the claimant was attached to the labor market and entitled to awards for the March 14, 2014, to October 1, 2015, period.

The dissenting Board Panel member would find that the claimant misrepresented material facts concerning his involvement with Global Aircraft and that the claimant's material misrepresentations should impact the finding of attachment, the direction of awards, and should constitute the basis of a finding that claimant violated Workers' Compensation Law (WCL) § 114-a.

In the State Insurance Fund's (SIF's) application for Mandatory Full Board Review, it argues that the Board Panel majority opinion is not supported by the evidence and contradicts the prior Board Panel decision filed on January 21, 2016, directing the claimant to produce his tax returns. SIF also argues that at the least the claimant violated WCL § 114-a.

In rebuttal, the claimant argues that the Board Panel majority decision should affirmed by the Full Board because the Board Panel majority did not commit any errors of fact or law and the decision was a reasonable exercise of their judicial discretion.

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

FACTS

This matter is established for work-related injuries to the claimant's neck, back, and right rib cage that occurred on February 28, 2011.

In a notice decision filed on March 19, 2015, the WCLJ found that the claimant had a permanent partial disability resulting in a loss of wage earning capacity of 75%, entitling him to wage loss benefits not to exceed 400 weeks pursuant to WCL § 15(3)(w). At the time of classification, the claimant was not working and was entitled to continuing payments of $642.77 per week. The WCLJ found the claimant's testimony was credible and that he was attached to the labor market. The WCLJ held in abeyance awards for the period May 26, 2011, to March 14, 2014, issued awards for the period March 14, 2014, to March 16, 2015, at the temporary partial rate of $642.77, and continuing at the permanent partial disability (PPD) rate of $642.77. The WCLJ awarded $11,300.00 in fees to the claimant's attorney.

SIF sought administrative review of the WCLJ's March 19, 2015, decision.

In a decision filed on January 21, 2016, the Board Panel found that although the claimant had denied ever working for Global Aircraft at the March 16, 2015, hearing, SIF had now produced evidence, attached to its application for administrative review and supplemental application for review, indicating that the claimant's LinkedIn account listed him as CEO of Global Aircraft. SIF had also produced an "invitation to connect on LinkedIn" to another employee of the employer. As the evidence was not before the WCLJ, the Board Panel considered this evidence pursuant to 12 NYCRR 300.13(g) and modified the WCLJ decision filed on March 19, 2015, to rescind all awards and attorneys' fees without prejudice, pending further development of the record, including the claimant's testimony and submission of copies of the claimant's tax returns for all years from 2011 forward.

The claimant testified at a hearing held on March 9, 2016, that he never worked, for pay or not for pay, for a company called Global Aircraft. The claimant testified that he did not file any personal income tax returns for the years 2011 to 2014. Claimant produced his wife's personal returns for those years because the Global Aircraft business was in her name. He never created a LinkedIn account, but his wife registered Global Aircraft on LinkedIn and listed him as CEO and also listed their twelve-year-old twins as having positions with the business. He has never been on LinkedIn. Global Aircraft has now been dissolved. The business had been registered, but it never took off. Global Aircraft never filed any tax returns. His family's email address was the same email address that was used for Global Aircraft. Claimant testified that he had returned to work in October 2015 and he was working full time.

At the conclusion of the March 9, 2016, hearing, the WCLJ found that the credible evidence did not demonstrate that the claimant performed work for Global Aircraft even though he was listed as CEO. The WCLJ issued awards to the claimant for the period March 14, 2014, to March 16, 2015, at the temporary partial rate of $642.77, and from March 16, 2015, to October 1, 2015, at the PPD rate of $642.77, and held in abeyance the period October 1, 2015, to date. The WCLJ directed the carrier to release the attorney fees awarded in the notice of decision filed March 19, 2015, and awarded the claimant's attorney an additional fee of $2,000.00, based on the additional awards made at the hearing. Those findings are memorialized in a decision filed on March 14, 2016.

In SIF's application for administrative review of the WCLJ's March 14, 2016, decision, it argued that the WCLJ arbitrarily and capriciously reinstated the claimant's awards despite the direction of the Board Panel in the decision filed on January 21, 2016. SIF requested that the March 14, 2016, decision be rescinded and the case closed until claimant produces tax returns and/or his social security earnings statement and the registration, dissolution, and any other relevant papers for Global Aircraft.

In rebuttal, the claimant argued that the WCLJ decision should be affirmed in its entirety because the WCLJ did not commit any error of fact or law, there was no evidence that the claimant ever worked for Global Aircraft, and there was no basis for any finding of a violation of WCL § 114-a.

LEGAL ANALYSIS

Although the Board is entitled to make its own factual findings and is not bound by the credibility determinations of a WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 [2003]), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 [1991]). Here, the WCLJ who was present when the witnesses testified and was able to observe their demeanor, found the claimant to be credible.

Here, a review of the record indicates that the claimant substantially complied with the directives set forth in the Board Panel decision filed on January 21, 2016, concerning his name being listed as the CEO of Global Aircraft on LinkedIn. The Full Board finds that the claimant credibly testified that he did not have a LinkedIn account, his wife set up the account for Global Aircraft, and listed him and their twin daughters as officers. The claimant was also directed to produce his personal income tax returns from 2011 forward. The claimant testified that he did not file income tax returns, but produced his now wife's/then girlfriend's personal income returns because she created the business. He credibly testified that the business never got off the ground and never filed tax returns. Furthermore, the claimant attached to his rebuttal of SIF's application for administrative review a business search from the Georgia Corporations Division that indicated that NK Design International, Inc., dba Global Aircraft Solutions, was formed/ registered on March 28, 2007, last filed its annual registration in the year 2011, and was administratively dissolved on December 31, 2015. The document also listed the claimant as the Secretary of the business and the claimant's now wife as the CEO and the CFO.

Therefore, the Full Board, upon a preponderance of the evidence in the record, finds that the claimant's testimony was credible, that he did not violate WCL § 114-a, and is entitled to awards for the period March 14, 2014, to October 1, 2015.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed March 14, 2016, is AFFIRMED in its entirety. No further action is planned by the Board at this time.