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Case # G1265353
Date of Accident: 05/12/2015
District Office: Albany
Employer: Columbia Memorial
Carrier: Pennsylvania Manufacturers'
Carrier ID No.: W173504
Carrier Case No.: 0014W46244
Date of Filing of Decision: 04/13/2017
Claimant's Attorney: Martin, Harding & Mazzotti 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 13, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant should be permanently disqualified from receiving indemnity benefits pursuant to Worker's Compensation Law (WCL) § 114-a.

The Workers' Compensation Law Judge (WCLJ) found the claimant violated WCL § 114-a and permanently disqualified her from receiving indemnity benefits.

The Board Panel majority affirmed the WCLJ decision, finding that the serious and egregious nature of the claimant's misrepresentations warranted a discretionary penalty of permanent disqualification.

The dissenting Board Panel member would assess a discretionary penalty of $1,000.00 pursuant to WCL § 114-a, but would not permanently disqualify claimant from receiving indemnity benefits.

The claimant filed an application for Mandatory Full Board Review on November 11, 2016, arguing that she made no material misrepresentations in violation of WCL § 114- In the alternative, the claimant requests that the discretionary penalty of $1,000.00 be imposed instead of permanent disqualification from future indemnity benefits.

The carrier filed a rebuttal on December 8, 2016, contending that claimant violated WCL § 114-a, and that permanent disqualification is appropriate because the claimant engaged in a pattern of deceitful behavior by using her walker while attending physicians' appointments.

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

FACTS

This claim is established for work-related injuries to the claimant's back resulting from an accident on May 12, 2015. In a C-4 (Doctor's Initial Report) dated May 30, 2015, Dr. Scheid, the claimant's treating neurosurgeon, indicated that the claimant injured her back by carrying boxes downstairs at work. Dr. Scheid opined the claimant was 100% temporarily disabled and recommended that she remain out of work for one week. Dr. Scheid also determined based on an MRI that claimant's accident caused "a disk herniation at L4-5 in the setting of degenerative disc disease at L4-5 and L5-S1."

In an IME-4 (Independent Examiner's Report of Independent Medical Examination) dated July 31, 2015, for an examination on July 22, 2015, the carrier's medical consultant, Dr. Hughes, a neurologist, reported the claimant stated she was carrying boxes full of records down three flights of stairs to the basement when she developed back pain, but kept working. The claimant further reported she woke up one day and could not move so she went to urgent care. The claimant reported she had low back pain, but had not undergone physical therapy, chiropractic care, massage therapy, acupuncture or surgery. The claimant reported that without medication, the pain was severe, and she could not sit or stand for more than fifteen minutes. With medication, the claimant had no limitations with sitting or standing. The claimant reported she could walk for forty-five minutes with a walker, and she could drive for thirty minutes without medication.

Dr. Hughes examined the claimant and noted that she could get on and off the examination table without assistance, could walk unaided but walked slowly with a walker. Dr. Hughes reported flexion of the lumbar spine was 30 degrees (60 degrees normal), extension was 20 degrees (25 degrees normal), right lateral flexion was 20 degrees (normal 25 degrees), and left lateral flexion was 20 degrees (normal 25 degrees). Dr. Hughes reviewed the claimant's medical records and determined the claimant had low back pain from a herniated lumbar disc, causally related to the work injury of May 12, 2015. Dr. Hughes opined the claimant had a moderate 50% temporary disability but she could work with a 20 pound lifting restriction.

In an IME-4 dated July 30, 2015, for an examination held on July 23, 2015, the carrier's medical consultant, Dr. Wiener, noted a history reported by the claimant of presenting to her primary care physician on May 27, 2015, and being transported by ambulance and admitted to the hospital for back pain. However, Dr. Wiener noted the medical records indicated the claimant was admitted to the hospital for pneumonia. Dr. Wiener noted that an MRI study revealed a disc herniation at L4-5, superimposed on pre-existing degenerative disc disease at L4-5 and L5-S1. Dr. Wiener wrote that he wanted to review the MRI report and actual study because the claimant was only twenty-six years old.

Dr. Wiener's examination revealed the claimant's active range of motion at the waist was 25 degrees of flexion (normal 70-90 degrees) and five degrees of extension (normal 20-30 degrees). Dr. Wiener reported no sensory dysfunction distally in the lower extremities in the L4, L5 or S1 distributions. Dr. Wiener diagnosed lumbosacral stain, superimposed upon pre-existing degenerative disc disease, lumbosacral spine. Dr. Wiener concluded that the claimant had a soft tissue strain injury to the lumbar spine, and without the MRI study, he was unable to provide a conclusion concerning causal relationship, but it was his professional opinion that the MRI findings documented in the medical records appeared far less significant than the claimant's physical findings.

In a July 24, 2015, report, claimant's treating physician, Dr. Krizar, noted that claimant "ambulates slowly with a wheeled walker," and concluded that she was temporarily totally disabled.

At a hearing on August 17, 2015, the carrier's attorney noted they were raising WCL § 114-a. Awards were held in abeyance for development of the record concerning WCL § 114-a and the case was continued.

At a hearing on September 25, 2015, the claimant testified that she was working in a hospital as a file clerk and on or about May 12, 2015, as she was carrying boxes down stairs, she experienced stabbing low back pain. She had never felt that type of pain before.

On cross-examination, the claimant testified that she had voiced concern to her co-workers about the physical nature of her job because she was required to carry files down stairs, without the use of an elevator. She had become frustrated after being removed from a desk job and moved to the filing job, and had stated she hoped she fell down the stairs "because I was doing it alone and I was not allowed to have help..." The claimant testified that after the accident on May 27, 2015, she was supposed to follow up with her primary care physician with regards to her back pain, but when she got out of bed that morning, she could not walk or go to the bathroom, so she called an ambulance.

On redirect examination, the claimant testified that the employer's witness was a co-worker with whom she used to be friendly but they had an issue at work in November 2014, and had not spoken since.

At a hearing held on October 20, 2015, the employer's witness testified she worked for the employer as a medical records clerk, and worked with the claimant. On May 12, 2015, she overheard the claimant saying "she hopes she hurts her back and goes out on disability." The witness also testified that on or about May 21, 2015, she observed the claimant dancing in the basement filing room. On cross-examination, the witness testified that after November 2014, she no longer spoke to the claimant. The claimant thought it was unfair she had to carry the boxes downstairs. On redirect examination, the witness testified that the whole office, about eight people, overheard the claimant state that she hoped she hurt her back.

The carrier's investigator testified on October 20, 2015, that he performed surveillance on the claimant on July 16, 20, 21 and 22, 2015, and captured video surveillance of the claimant on July 22, 2015. The investigator testified that the DVD and report were true and accurate copies of all of the surveillance evidence of the claimant. On cross-examination, the investigator testified he captured the claimant on video surveillance on July 22, 2015, and he was asked to follow the claimant from her scheduled IME on that date.

By a reserved decision filed February 25, 2016, the WCLJ found the claimant violated WCL § 114-a(1) by making an intentional misrepresentation of material fact for the purpose of obtaining compensation when on July 22, 2015, the claimant went to the carrier's neurologist using a four wheeled walker but the surveillance video taken after the examination showed the claimant walking without the walker, without any gait problems and without any restrictions. The WCLJ noted that the claimant left the neurologist at 9:56 a.m. using the walker, and the surveillance video shows the claimant at 10:07 a.m. walking into Walmart without the walker and without any gait problems. The WCLJ noted the video shows the claimant at 10:55 a.m. walking out of Walmart without the walker, and without any gait problems, and the claimant thereafter loaded items from the shopping cart into the trunk of the car. The WCLJ imposed a discretionary penalty permanently disqualifying the claimant from receiving any indemnity benefits with respect to her May 12, 2015, accident.

The claimant filed an application for administrative review, arguing that the claimant's activities on surveillance were not outside of any restrictions any physician recommended for her. Further, there was no indication that the claimant made any false statements concerning her use of the walker. As such, the claimant argued she made no false representations about her activities or limitations, and did not violate WCL § 114-a.

In rebuttal, the carrier argued the WCLJ's findings should be upheld because the claimant made material misrepresentations of her physical condition in order to receive 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]).

Pursuant to the authority granted by WCL § 114-a(1), the Board has the discretion to disqualify a claimant from receiving any future wage replacement benefits. However, "the penalty imposed may not be disproportionate to the underlying misconduct (Matter of Harp v New York City Police Dept., 96 NY2d 892 [2001])" (Matter of Kodra v Mondelez Intl., Inc., 145 AD3d 1131 [2016]). In support of a determination that this onerous penalty is warranted, the Board must provide an explanation that the underlying deception was egregious or severe, or there was a lack of mitigating circumstances (Kodra, 145 AD3d 1131 [2016]).

Here, the claimant testified that she was upset at work about being shifted into a filing position which she felt was unfair, and she told her co-workers she hoped she fell down the stairs and hurt her back. The claimant also testified that on or about May 19, 2015, she experienced stabbing back pain while carrying files down the stairs, but she continued to work that day. The first C-4 is dated May 27, 2015, and corresponds to the claimant's hospitalization. Dr. Wiener noted in his IME report the claimant reported she was hospitalized for her back pain; however, the report from the hospital indicates the claimant was admitted for pneumonia.

As explained in detail in the WCLJ reserved decision, the claimant arrived and departed from the office of the carrier's IME, Dr. Hughes, using a four wheeled walker. However, surveillance showed that minutes later, the claimant went shopping without the walker and without any gait issues. The following day, the claimant again used the walker when attending an IME with Dr. Weiner. As found by the WCLJ, claimant's actions constitute a violation of WCL § 114-a(1), and her repeated exaggeration of her physical limitations was sufficiently egregious to warrant permanently disqualifying her from receiving future indemnity benefits.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant made willful misrepresentations of her medical condition in violation of WCL § 114-a(1), and that a discretionary penalty of permanent disqualification of indemnity benefits is appropriate.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed February 25, 2016, is AFFIRMED. No further action is planned by the Board at this time.