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Case # G0188584
Date of Accident: 09/10/2009
District Office: NYC
Employer: Pep Boys
Carrier: New Hampshire Insurance Co
Carrier ID No.: W154009
Carrier Case No.: A4E4843
Date of Filing of Decision: 04/13/2017
Claimant's Attorney: Grey and Grey 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 5, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant misrepresented his medical condition in violation of Workers' Compensation Law (WCL) § 114-a.

The Workers' Compensation Law Judge (WCLJ) found that the claimant had materially misrepresented his limitations to the carrier's consulting physician and the Board for the purpose of obtaining benefits, and therefore violated WCL § 114-a. The WCLJ assessed a discretionary penalty of permanent disqualification from receiving lost wage benefits.

The Board Panel majority reversed the WCLJ and found no evidence of a WCL § 114-a violation, as the claimant had not mischaracterized any material facts to the independent medical examiner or the Board.

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

The carrier filed an application for Mandatory Full Board Review on October 13, 2016, arguing that the video evidence demonstrates that the claimant misrepresented his physical abilities to the Board and the carrier's consultant in violation of WCL § 114-a. The carrier also contends that the WCLJ properly barred the claimant from receiving any indemnity awards after July 5, 2015.

The claimant filed a rebuttal on November 14, 2016, contending that the majority reached the correct conclusion because "[t]he video shows very limited activity from the claimant over a very limited period of time and nothing in the video reveals that the claimant made a material misrepresentation to obtain workers' compensation benefits."

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

FACTS

The case is established for injuries to the neck, left shoulder and consequential right shoulder sustained in a work-related accident on September 10, 2009, when claimant was employed as a sales manager. The average weekly wage was set at $765.14.

Following the accident, claimant underwent a left ulna transposition surgery on June 8, 2010 (see C-4.2 [6-8-10]), left rotator cuff repair on August 17, 2010 (see C-4.2 [8-17-10]), a left acrominoclavicluar resection on May 3, 2011 (see MED-NARR [5-3-11]), anterior cervical fusion at C5-6 on July 19, 2012 (see MED-NARR [7-19-12]), and right rotator cuff surgery on January 13, 2015 (see MED-NARR [1-13-15]).

Claimant's treating physician, Dr. Weiner, examined claimant on April 9, 2015 (see C-4.2 [4-9-15]). The report of that examination found claimant 100% disabled and noted claimant had full range of motion of the right shoulder but limited range of motion of the left shoulder (see id. at pp. 3-4).

At the request of the carrier, claimant was examined by its orthopedic consultant, Dr. Dorsey, on May 12, 2015 (see IME-4 [5-12-15]). Dr. Dorsey's report of independent medical examination (IME) noted: "The patient has difficulty dressing himself, taking a bath, opening a new carton of milk, getting on and off the toilet, using a telephone, sitting, standing, rising from a chair, and doing light housework. He has much difficulty getting in and out of a car, sleeping and engaging in sexual activity" (id. at pp. 4-5). Dr. Dorsey determined that claimant had a moderate to marked disability between 50% to 75% due to his cervical spine condition (see id. at p. 29). Dr. Dorsey noted that his opinion was based on "history as provided by the [claimant,]" his physical examination of the claimant, and x-rays (id. at p. 30). In a supplemental IME report dated August 5, 2015, Dr. Dorsey reviewed EMGs performed on May 20, 2015, and found there was evidence of a neuropathic process involving the long thoracic nerve and further opined claimant's disability rating remained between moderate and marked (see IME-4 [8-5-15], at p. 2).

On September 17, 2015, the carrier filed a request for further action (RFA-2) requesting a hearing to reduce claimant's benefits, which were being paid at the temporary total disability rate, based on Dr. Dorsey's IME report.

Dr. Weiner filed a C-4.2 regarding an examination on October 6, 2015, in which he opined that the claimant was 100% disabled, and totally disabled "from any position that requires any lifting" (C-4.2 [10-6-15], at p. 4). The doctor advised the claimant against performing "any lifting, overhead activities, and looking up secondary to his cervical region" (id.).

At a hearing on November 5, 2015, the carrier raised the issue of WCL § 114-a and notified the WCLJ of the existence of surveillance video, and requested that awards be suspended based on the surveillance evidence (see Hearing Transcript, 11/5/15, p. 2). The WCLJ reviewed video surveillance proffered by the carrier in camera. By a decision filed on November 10, 2015, the WCLJ held the RFA-2 in abeyance, as the IME did not address all established sites of injury, and the case was continued for the testimony of claimant and the carrier's investigator on the WCL § 114-a issue.

In an application for administrative review filed on December 4, 2015, the carrier appealed from the November 11, 2015, WCLJ decision. The carrier argued that the WCLJ should have suspended compensation awards as of the date of the November 5, 2015, hearing due to the WCLJ's in camera review of the surveillance evidence (see RB-89 [12-4-15]).

In rebuttal, the claimant contended that the Board's regulations do not permit a suspension of benefits solely based upon submission of evidence, and that a hearing is necessary (see RB-89.1 [12-23-16]).

During the pendency of the carrier's appeal from the November 10, 2015, WCLJ decision, the case came back on the calendar on December 4, 2015, for claimant's testimony via telephone. He testified that he had not performed any work since 2010 and was enrolled in school for management, beginning July 5, 2013 (see Hearing Transcript, 12/4/15, p. 3). The claimant acknowledged that he had advised Dr. Dorsey he had difficulty dressing, bathing and opening a carton of milk (see id. at p. 4). The claimant stated that he also had difficulty sitting for long periods, standing, and lowering himself to sit as a result of his work-related injuries (see id. at pp. 4-5). He moved to California in July 2014 and drove there along with other drivers, and they made stops along the way (see id. at pp. 5-6, 8). Claimant testified that he was examined by the IME about three and a half months after his right shoulder surgery and he was still in physical therapy at that time (see id. at p. 7). He described his condition as "[n]ot an inability to do certain things[,]" but that he "just dealt with a lot of pain" (id.). The claimant explained he had difficulties with dressing, bathing and opening things, but "it's not impossible. I can do it but I do have difficulties" (id. at p. 8). The claimant attested that the restrictions placed on him were, "[c]ertain weights of lifting cannot exceed 40 pounds. Certain things cannot exceed 20 pounds" (id. at p. 9).

The carrier's investigator testified at a hearing on December 17, 2015, that he conducted surveillance on May 21, 2015; July 1, 5, and 6, 2015; and August 6, 7, and 8, 2015 (see Hearing Transcript, 12/17/15, p. 3). He also prepared reports of his investigations (see id. at pp. 5-6). The surveillance taken in July showed claimant walking, entering and exiting a vehicle, using both hands to push a shopping cart, lifting grocery bags, carrying trash bags, trays of food, and unloading bags from the trunk of a car (see id. at pp. 4-5). The surveillance from August showed claimant stepping onto his balcony and picking up a leather headboard with both hands, with the assistance of another person (see id. at pp. 5-6). The investigator testified claimant did not appear to have difficulty performing these tasks (see id. at pp. 4-5). On cross-examination, the investigator conceded he did not have information as to the weight of the shopping bags and could not recall whether the claimant's wife appeared to bear the weight of the headboard instead of the claimant (see id. at p. 6). He had no independent recollection of the surveillance and relied completely on the information in his reports (see id. at p. 6).

The record includes copies of surveillance reports from two investigators, including the carrier's witness. The reports are dated August 24, 2014; October 9, 2014; May 28, 2015; July 7, 2015; and August 13, 2015. The reports include descriptions of video surveillance taken of the claimant as well as results from internet searches concerning the claimant, including his social media accounts. The record also includes a DVD of video surveillance taken in September and October 2014 as well as in May, July, and August 2015. In addition to the surveillance videos attested to by the carrier's witness, surveillance footage taken on October 1, 2014, shows the claimant engaged in cleaning and shining the exterior of his car for approximately 36 minutes. In this footage, the claimant repeatedly circles around his vehicle, crouches down to clean and shine the wheels and rims, extends over the vehicle to clean the glass, and sits down in the driver's seat and quickly emerges on three occasions.

By a reserved decision filed on April 13, 2016, the WCLJ found claimant materially misrepresented his limitations to the carrier's IME and to the Board for the purpose of obtaining continuing benefits and thus found that the claimant had violated WCL § 114-a. The WCLJ assessed a discretionary penalty permanently disqualifying claimant from receiving lost wage benefits after July 5, 2015, the date of the carrier's first surveillance video.

In an application filed on May 13, 2016, the claimant sought administrative review of the April 13, 2016, WCLJ decision. Therein, the claimant argued that there was insufficient evidence to support the WCL § 114-a violation. The claimant noted that the weight of the objects the claimant was seen lifting was unknown. The claimant further noted that the surveillance video "was only one day's worth of events[,] and [his] pain and difficulties tend to have good days and bad days" (RB-89 [5-13-16], at p. 3). In sum, the claimant argued, the videos do not show him engaged in any activity that is inconsistent with what he told the Board or any physician.

In rebuttal, the carrier contended that the evidence supports the WCLJ's finding of a WCL § 114-a violation.

LEGAL ANALYSIS

WCL § 114-a - Material Misrepresentation

"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 plain language of WCL § 114-a 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 [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]). "The crucial question is whether the misrepresentation related to a fact that was relevant to the proceedings" (Matter of MABSTOA, 2006 NY Wrk Comp 08620233).

Here, the carrier's IME, Dr. Dorsey, noted in his report, that claimant had advised him during his examination on May 12, 2015, that he "has difficulty dressing himself, taking a bath, opening a new carton of milk, getting on and off the toilet, using a telephone, sitting, standing, rising from a chair, and doing light housework. He has much difficulty getting in and out of a car, sleeping and engaging in sexual activity." However, this description of claimant's physical capabilities is at odds with the July 2015 surveillance footage showing the claimant entering and exiting a car with ease. The surveillance footage taken months earlier, on October 1, 2014, also shows the claimant bending and kneeling down repeatedly and quickly getting into and out of his car on three occasions, notwithstanding his later report to the IME that he could not sit, stand, or rise from a toilet or chair.

The Board and Third Department have found that such "an exaggeration of symptoms to a physician charged with assessing claimant's degree of disability" constitutes a material misrepresentation (Matter of US Nonwovens Corp., 2015 NY Wrk Comp G0442490, citing Matter of Michaels v Towne Ford, 9 AD3d 733 [2004] and Matter of Bowes v Gulinellos Town & Country, 3 AD3d 805 [2004]; see also Matter of Poupore v Clinton County Hwy. Dept., 138 AD3d 1321 [2016] [holding that substantial evidence of a section 114-a violation existed where a surveillance video showed the claimant engaged in activities he told the IME he was incapable of performing]).

In this case, the most reasonable conclusion to draw from the claimant's exaggeration of his symptoms to the IME is that the claimant intended to influence the physician's determination regarding his degree of disability. Indeed, the claimant does not offer a compelling alternative explanation for the discrepancy between his physical abilities captured in the surveillance video versus his characterization of his physical abilities to the IME. The claimant argues only that he has good days and bad days; his description to the IME was not so nuanced, however. Thus, claimant's assertions to Dr. Dorsey regarding his physical abilities were clearly material (see e.g. Matter of VIP Health Care Service, 2011 NY Wrk Comp 0075 1218 [finding a WCL § 114-a violation where the claimant misrepresented her prior medical conditions to an IME]; Matter of A/C Electrical Supply, 2008 NY Wrk Comp 40606017 [finding that the misrepresentations were material because "they relate to the claimant's entitlement to collect workers' compensation benefits"]).

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant made a material misstatement in violation of WCL § 114-a.

Penalties Pursuant to WCL § 114-a

"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]).

Here, because the record does not support a finding that claimant received any compensation as a direct result of his material misstatement, a mandatory penalty pursuant to WCL § 114-a is not warranted.

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]).

The Full Board finds that claimant's misstatements in this matter were not so egregious as to warrant permanent disqualification from receiving further lost wage benefits. However, the Board does not condone fraud and claimant's action were sufficiently serious to warrant a discretionary penalty that falls short of permanent disqualification.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports assessing a discretionary penalty pursuant to WCL § 114-a(1) disqualifying claimant from receiving 22.8 weeks of compensation benefits. The case is to be returned to the trial calendar for the WCLJ to make awards as appropriate, which shall be subject to the discretionary penalty.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed November 10, 2015, is AFFIRMED and the WCLJ reserved decision filed April 13, 2016, is MODIFIED to assess a discretionary penalty pursuant to WCL § 114-a(1) disqualifying claimant from receiving 22.8 weeks of compensation benefits. The case is continued.