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Case # 00625453
Date of Accident: 06/01/2006
District Office: NYC
Employer: LSG Sky Chefs
Carrier: Old Republic Insurance Co.
Carrier ID No.: W166003
Carrier Case No.: 205A15406
Date of Filing of Decision: 11/20/2017
Claimant's Attorney: Turley Redmond Rosasco & Rosasco LLP
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 17, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 24, 2016.

ISSUE

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

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

The Board Panel majority affirmed the decision of the WCLJ.

The dissenting Board Panel member would find that there is sufficient evidence in the record to support a finding of material misrepresentation in violation of WCL 114-a, and return the file to the trial calendar to address the appropriate penalties

The carrier filed an application for Mandatory Full Board Review on September 22, 2016, arguing that the claimant has misrepresented her employment status with TAP Electrical Corporation (TAP) in violation of WCL 114-a.

The claimant filed a rebuttal on October 20, 2016, arguing that the finding of the Board Panel majority should be affirmed as the claimant did not make a knowing misrepresentation or omission in violation of WCL 114-a.

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

FACTS

The instant case, WCB Case Number 00625453, was initially established for a work-related injury to the claimant's left knee occurring on June 1, 2006, while claimant was employed by LSG Sky Chefs. The case was amended in 2013 to include the right knee and a consequential right ankle injury.

WCB Case Number 40707054 is established for a left ankle injury that occurred on July 19, 2007, while the claimant was employed by TAP.

The "No Claims" folder of the Board's claims information system (CIS) contains a C-2 completed by TAP, alleging that the claimant sustained a right knee injury in the course of her employment on May 8, 2009. A claim was not indexed by the Board for this alleged injury.

Claimant underwent a left knee arthroscopy performed by Dr. Kipnis on September 15, 2006. Claimant was released to return to work by Dr. Kipnis on October 23, 2006. The Board file contains no further medical records relating to this claim until the September 27, 2011, report of Dr. Kipnis. In that report, Dr. Kipnis noted that claimant's complaints included clicking, locking, and constant pain in the left knee, which had been increasing for the last two months. Claimant also reported buckling and pain with stairs. Claimant was found to have a total disability at that time. Claimant's treatment with Dr. Kipnis focused on the knee, including a May 31, 2012, left knee arthroscopy. A September 5, 2012, report of Dr. Kipnis indicated that this examination was a follow up visit for claimant's right knee, left knee, and right Achilles tendon. It appears that the carrier voluntarily picked up payments after the filing of Dr. Kipnis' September 27, 2011, medical report.

A C-4 (Doctor's Initial Report) completed by Dr. Kipnis as a result of a May 13, 2009, examination lists the employer as Tap Electric. The attached narrative indicated that the claimant presented for evaluation of "a new injury which occurred when she developed a stabbing pain to her right knee when carrying a pipe at work. She has pain and clicking when she tries to climb a ladder." The date of injury was listed as May 8, 2009. The C-4 was filed in claimant's 2007 claim, but was deemed not compensable in that file.

A hearing was held on March 19, 2013, at which awards were made dating back to November 28, 2011, the date the carrier obtained a consultant's report. At the March 19, 2013, hearing, the claimant testified that she was not currently working and had not returned to work in any capacity.

At a November 28, 2011, IME with the carrier's consultant, Dr. Miller, the claimant reported injuring her left knee in the accident of record. Claimant reported that she worked as a chef at the time of the accident and was not currently working. Claimant presented at the examination limping and using a cane in her left hand. Claimant denied a history of any prior accidents, specifying that she did not have any prior or subsequent left knee injuries.

At a March 5, 2012, IME with Dr. Miller, claimant did not elaborate on the mechanism of her injury, but Dr. Miller indicated that the claimant treated for her left knee following the accident.

In reports filed as a result of the December 3, 2012, and September 9, 2013, IMEs, Dr. Miller indicated again that the claimant did not report any prior or subsequent injuries. Claimant reported that she was employed as a chef at the time of the accident and is not currently working. At both of those examinations claimant reported having injured both knees and her right ankle in the June 2006 accident.

At an April 1, 2013, IME by Dr. Miller, claimant again denied prior injuries. Claimant reported that she was employed as a chef at the time of the accident and is currently not working. Claimant indicated that she injured her bilateral knees and right ankle in the June 2006 accident, and the doctor found causal relationship to the right ankle and left knee.

At a January 28, 2014, IME by Dr. Benatar, the claimant indicated that she is not presently working. At one point, she returned to work with TAP, but had to stop due to left knee pain. She denied any injury occurring on May 8, 2009, stating that it simply did not occur. Dr. Benatar opined that the claimant has a causally related temporary marked partial disability.

In a report based on a July 15, 2014, IME, Dr. Benatar reiterated that the claimant provided history of working briefly for an electric company at some point after the June 1, 2006, work-related injury until being let go in 2011. Dr. Benatar opined that the claimant has a moderate to marked partial disability of 65% and can return to light duty work.

At a hearing held on April 8, 2015, the carrier raised the issue of WCL 114-a, and the case was continued for the testimony of the claimant and a lay witness, and for summations.

At a hearing held on May 21, 2015, the claimant testified that she sustained a work-related injury to the left knee on June 1, 2006, and had surgery as a result. The claimant also suffered a consequential right ankle injury that required surgery on December 3, 2015. When specifically questioned if she sustained an injury to her right knee on May 8, 2009, while doing electrical work, the claimant testified, "I don't remember that happening." When pressed concerning the incident, claimant testified that "I can't honestly remember the incident all of the way." The claimant was reminded that she was seen by Dr. Kipnis in May of 2009, but that fact did not refresh her memory. The claimant went on to state that "I have honestly been through so many things that I can't remember." Claimant also testified that she could not recall losing time due to her left knee injury, or re-injuring her knee in 2011. Claimant had left ACL reconstructive surgery in 2007. On re-direct, the claimant testified that she does not recall filing a workers' compensation claim for a May 8, 2009, work-related injury to the right knee.

On cross-examination, the claimant testified that after sustaining her left knee injury in 2006, she couldn't recall if she informed the carrier's consultants about a right knee injury. The claimant testified that she was working for TAP in May 2009. When asked again if she had injured her right knee at work on May 8, 2009, the claimant testified that "I don't remember if it happened at that time." When questioned by the WCLJ, the claimant said she did not remember injuring her right knee on that date. The claimant was then shown an injury report documenting the May 8, 2009, accident. Claimant again testified that she did not recall the incident and that she did not file a workers' compensation claim as a result. The claimant was then shown a Board Notice of Consent to utilize the employer's network care provider service, but this document failed to jog her memory. The claimant did acknowledge that her signature was on the bottom of the form. When asked if she filed a workers' compensation claim as a result of the May 8, 2009, incident she responded that "[i]n all honesty, I don't remember this." After searching open and archived CIS claims, the WCLJ concluded that no workers' compensation claim was filed for the May 8, 2009, incident. The claimant conceded treating with Dr. Kipnis in May 2009 based on what she was told at the last hearing. When specifically asked about treating with Dr. Kipnis on May 13, 2013, the claimant responded that she did see him on that date "according to the paperwork." When specifically asked about that part of the report of Dr. Kipnis that indicates that she was 100% disabled, the claimant stated that "I don't remember this accident. I am being honest." Claimant could not remember the safety manager for TAP, and did not remember reporting a May 8, 2009, accident to the employer. She was never asked by the carrier's consultant, Dr. Miller, if she sustained any injuries before or after June 1, 2006. She then stated that she could not remember as it had been so long ago. She did not recall denying the May 8, 2009, incident to the carrier consultant, Dr. Benatar. The claimant did not recall reporting a September 27, 2011, knee injury to TAP. She did begin to have left knee problems again at that time and told the employer that her left knee condition was getting worse, but did not mention re-injuring an old workers' compensation injury. She eventually had to leave work with TAP as a result. The claimant then conceded that she did inform the employer that her current left knee issues were due to the left knee injury she sustained while in the course of her employment with LSG Sky Chefs. The claimant testified that she did not recall reporting the May 8, 2009, right knee injury to the employer.

The former Project Safety Engineer for TAP also testified at the hearing held on May 21, 2015, that he was working for the TAP as of May 2009, and that his job duties included receiving and making workers' compensation benefits reports. He completed the incident report, accident investigation report and C-2 form for the claimant's May 8, 2009, work-related injury. He did not find out about the claimant's May 8, 2009, accident until October 9, 2009, when the employer received medical reports detailing the incident.

On cross-examination, TAP's former Project Safety Engineer testified that he completed the C-2 based on information that was provided to him by the claimant. The claimant's accident occurred on Friday, May 8, 2009, and the claimant returned to work on Monday, May 11, 2009. The witness indicated that he felt the information on the C-2 must have been from the claimant, but did not deny that it could have come from a medical report.

In a decision filed on August 24, 2015, the WCLJ found that the claimant did not knowingly make a material misrepresentation, instead concluding that the claimant could not recall her May 8, 2009, work-related injury sustained while in the employ of TAP as she was disorganized and has a poor memory. In support of this conclusion, the WCLJ pointed to the fact that the claimant lost no time from work as a result of this injury, no workers' compensation claim was filed with the Board, and claimant treated on only one occasion for this injury, on May 13, 2009. The WCLJ discounted as vague the carrier's contention that the claimant admitted to a non-work-related injury in 2011 that caused a re-injury of an old workers' compensation injury.

The carrier requested administrative review of the WCLJ decision.

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 claimant did not violate WCL 114-a by failing to disclose the May 8, 2009, injury to her right knee while employed by TAP. A conclusion that a claimant has violated the statue requires a finding that he or she has done so knowingly, with intent to deceive. The claimant repeatedly testified at the May 21, 2015, hearing that she could not recall the May 8, 2009, incident. Lending credence to claimant's contention are the fact that six years had elapsed between the incident and her testimony, and that the incident was relatively minor in nature (a sprain). The claimant also did not miss any time from work as a result of the May 8, 2009 injury, sought treatment on only one occasion on May 13, 2009, and did not file a workers' compensation claim with the Board or an incident report with the employer as a result. While the employer did file a C-2 with the Board, the claim was never indexed and the claimant did not ultimately become aware of its filing or receive any workers' compensation benefits as a result. Ultimately, whether the claimant recalled this minor 2009 incident distills to a credibility determination. The Board Panel appropriately credited the finding of the WCLJ that the claimant was a bad historian and did not knowingly or with intent to deceive, withhold the occurrence of the May 8, 2009, incident. Based on the conclusion that she did not recall the 2009 incident, any portion of the carrier's argument that she violated WCL 114-a by failing to disclose the 2009 incident to her physicians or the IMEs, is without merit. The brief indication in Dr. Miller's November 28, 2011, December 3, 2012, and April 1, 2013, IME-4s that she did not sustain any prior injuries is further mitigated based on the November 28, 2011, report indicating that the claimant clarified by indicating that she had not sustained any prior left knee injuries.

The alleged failure of the claimant to disclose her 2007 work-related left ankle injury (WCB Case Number 40707054) to the doctors does not constitute a material false statement, as the instant claim is established for the left knee, right knee and a consequential right ankle, but not for the left ankle.

The contention of the carrier that the claimant was not forthcoming with the IMEs concerning her employment history is also without merit based on a close scrutiny of the IME-4s filed in this case prior to the close of the record. The five IME-4s filed by Dr. Miller for IME examinations conducted on November 28, 2011, March 5, 2012, December 3, 2012, April 1, 2013, and September 9, 2013, indicate that the claimant provided a history that she is not currently working, which is consistent with the evidence of record indicating that her employment with TAP ended in 2011. Also, the two IME-4s filed by Dr. Benatar for examinations conducted on January 28, 2014, and July 15, 2014, indicate that the claimant definitively disclosed that she worked post-accident for an electric company (TAP) for a brief time before stopping in 2011. It is further noted that the claimant subsequently testified at hearings held on February 14, 2015, and May 21, 2015, that she returned to work with TAP after her 2006 left knee injury.

Finally, while the claimant generally testified at the March 19, 2013, hearing that she was not currently working and had not returned to work in any capacity, this omission was not raised in the carrier's September 23, 2015, application for administrative review as a basis for its WCL 114-a argument. As such, the carrier failed to preserve this particular issue for review, and it will not be considered. In any event, claimant was not working at the time of this testimony, and she was not clearly asked whether she had returned to work at all since her 2006 accident, such that her testimony does not support a finding that she violated WCL 114-a.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant has not violated WCL 114-a.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed August 24, 2015, is AFFIRMED. No further action is planned by the Board at this time.