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Workers' Compensation Board

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Case # G1421853
Date of Accident: 01/10/2016
District Office: Hauppauge
Employer: Advantage Sales & Marketing LLC
Carrier: Hartford Insurance Company
Carrier ID No.: W106751
Carrier Case No.: B652800053000101528
Date of Filing of Decision: 04/13/2017
Claimant's Attorney: MMiller & Caggiano LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on March 21, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 17, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant violated Workers' Compensation Law (WCL) § 114-a(1).

The Workers' Compensation Law Judge (WCLJ) found that the claimant did not violate WCL § 114-a(1).

The Board Panel majority reversed the WCLJ decision, found that claimant violated WCL § 114-a(1), and assessed a mandatory penalty.

The dissenting Board Panel member would find that the claimant did not violate WCL § 114-a(1), and would affirm the WCLJ decision.

The claimant filed an application for Mandatory Full Board Review on November 10, 2016, arguing that the dissent should be adopted as the decision of the Full Board because the claimant did not make a misstatement of fact on the C-3, to his doctors, or to the carrier's medical examiner.

The carrier filed a rebuttal on December 9, 2016, arguing that there is sufficient evidence to support a finding that the claimant violated WCL § 114-a(1) and requests that the majority decision be upheld.

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

FACTS

This case is established for a January 10, 2016, work-related low back injury. The carrier raised the issue of a violation of WCL § 114-a(1) by the claimant during the March 24, 2016, hearing. The carrier asserts that the claimant violated WCL § 114-a(1) by failing to disclose his prior back injury in his C-3 (Employee Claim), to the carrier's independent medical examiner, and his treating physicians, Dr. Gudesblatt and Dr. Ruggiero.

Claimant's initial C-3, which is dated January 14, 2016, but was filed with the Board on January 19, 2016, fails to disclose claimant's prior back injury. A duplicate of that C-3 was received by the Board on January 25, 2016. On January 27, 2016, the Board received an amended version of the C-3, which in response to question (F)(3) "Do you remember having another injury to the same body part...?" contains a typewritten "x" in the box indicating "No" (as did the prior versions of the C-3 filed with the Board), as well as what appears to be a handwritten mark in the box indicating "Yes." A duplicate of the amended C-3 was received on February 8, 2016. A C-3.3 (Limited Release of Health Information) was received by the Board on January 27, 2016, which states the claimant previously treated with Dr. Kelly for the injuries to the same body parts injured in the January 10, 2016, accident.

The C-4 (Doctor's Initial Report) for Dr. Gudesblatt's February 23, 2016, office treatment indicates that there was no history of a pre-existing back condition. However, reviewing the narrative report from that office visit shows that the claimant reported a prior lumbar disc herniation.

Dr. Ruggiero's testimony showed that he was aware of the claimant's prior back injury because he had been treating him since December 23, 2014. The records and testimony of Dr. Ruggiero reveal no evidence that the claimant misrepresented his past medical history.

The claimant was examined by the carrier's consultant, Dr. Waller, on March 21, 2016. In his IME-4 (Independent Examiner's Report of Independent Medical Examination), Dr. Waller stated that claimant "denies history of any prior accident, trauma or injury." Attached to the IME-4 is an intake questionnaire completed and signed by claimant, in which claimant denied having any prior accidents, or any injuries similar to the one sustained on January 10, 2016.

At a hearing on March 24, 2016, the claimant testified that he hurt his back lifting a microwave at work on January 10, 2016. On cross-examination, the claimant admitted that he had a prior work-related back injury in 2004. Claimant alleged that the C-3 forms he submitted were typed by "Sedgwick claims, the insurance carrier" and that he "wrote it out" (transcript, 3/24/06 hearing, p. 5).

WCB # G0593274 is established for injuries to claimant's neck and back resulting from a March 19, 2004, accident. Although claimant had no compensable lost time as a result of the injury, he continued to receive causally related treatment for his back injury through February 2015.

By a decision filed March 29, 2016, the WCLJ found the claimant did not violate WCL § 114-a(1) because he filed an amended C-3 and a C-3.3, which disclosed the prior back injury within days of filing the original C-3.

The carrier applied for administrative review.

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]).

In this case, the claimant amended his C-3 to correct the original C-3, and filed a C-3.3 indicating that he had prior treatment to the same injury site, within eight days of the filing of the original C-3. The promptness with which the C-3 was amended suggests that the original C-3's failure to disclose the prior back injury was an oversite, and does not support a finding that the "claimant knowingly makes a false statement."

Dr. Ruggiero stated that he knew about the claimant's prior back injury because he treated him for it in late 2014, and there is no credible evidence that the claimant attempted to conceal his prior injury from Dr. Ruggiero. Similarly, the medical records of Dr. Gudesblatt support a finding that the claimant did disclose the prior back injury. While the C-4 for the February 23, 2016, medical report indicate no prior injuries, the narrative attached to it clearly reflects a prior medical history of lumbar herniated disc with neuropathy into the left leg. Under these circumstances, this report cannot be a basis to find that the claimant violated WCL § 114-a(1).

However, the questionnaire the claimant completed and signed on March 21, 2016, during his examination by Dr. Waller, does contain a knowing material misstatement about his prior medical condition because he indicated no prior back injuries on this form. The Full Board find that his misstatement is sufficient to support a finding that the claimant violated WCL § 114-a(1).

A mandatory penalty is hereby imposed pursuant to WCL § 114-a(1) disqualifying the claimant from receiving indemnity benefits from March 21, 2016, the date of the misstatement to the carrier's medical examiner, to March 24, 2016, the date of the claimant's testimony. However, this misstatement had a minimal impact on the claim because the carrier's medical examiner was aware of the prior back injury based upon the contents of the narrative report. Therefore, the Full Board finds that a discretionary penalty pursuant to WCL § 114-a(1) is not warranted.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on March 29, 2016, is MODIFIED to find that the claimant violated WCL § 114-a(1) and is subject to a mandatory disqualification of indemnity benefits received from March 21, 2016, to March 24, 2016. The $1,000.00 penalty against the carrier pursuant to WCL § 114-a(3) is rescinded. In all other respects, the decision remains unchanged. No further action is planned by the Board at this time.