[WCA] Third Deparment decisions dealing with workers’ compensation

May 17, 2013

In Matter of Denman , the claimant filed an Appeal from a decision of the Workers’ Compensation Board, filed December 1, 2011, which ruled that claimant violated
Workers’ Compensation Law § 114-a and imposed a penalty.

Claimant sustained a work-related injury in 2003, which resulted in an award of workers’ compensation benefits of $359.41 per week based on a total disability rate. In July 2011, after
hearing testimony and viewing surveillance videos taken of claimant on March 17 and 18, and April 1, 2011, a Workers’ Compensation Law Judge (hereinafter WCLJ) concluded that,
although claimant was totally disabled, she nevertheless had misrepresented her disabilities in an effort to influence determinations made in connection with her claim. The WCLJ thus
found that claimant had violated Workers’ Compensation Law § 114-a and imposed a discretionary penalty of reducing her weekly benefits by $89.85 to $269.56 for a period of one year beginning
June 15, 2011. The Workers’ Compensation Board affirmed the WCLJ’s determination, and claimant now appeals.

The Court found that while there is a mandatory penalty under Workers’ Compensation Law § 114-a where compensation directly attributable to a false statement or representation is received, a
discretionary penalty may be imposed “‘regardless of whether the false statement or representation enabled the claimant to receive compensation'” (Matter of Michaels v Towne Ford, 9 AD3d 733, 734
[2004], quoting Matter of Losurdo v Asbestos Free, 1 NY3d 258, 266 [2003]). “A determination by the Board that a claimant violated Workers’ Compensation Law § 114-a will not be disturbed
if supported by substantial evidence” (Matter of Poli v Taconic Correctional Facily, 83 AD3d 1339, 1339-1340 [2011] [citation omitted]; see Matter of Martinez v LeFrak City Mgt., 100 AD3d
1110, 1111 [2012]). “The Board is the sole arbiter of witness credibility” (Matter of Hammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d 1252, 1252 [2009] [citations omitted]; see Matter
of Hadzaj v Harvard Cleaning Serv.
, 77 AD3d 1000, 1001 [2010], lv denied 16 NY3d 702 [2011]).

Claimant testified that she uses a walker some of the time (such as when she uses a walker some of the time (such as when she has “a long day”), otherwise uses her cane,
“always ha[s] a limp,” is not supposed to drive when taking her medications and, at the relevant time, was basically restricted from any activity. Video evidence revealed that when claimant
was at a Board location for a hearing (March 17, 2011) or a medical facility for an independent medical examination (April 1,2011), she walked laboriously and very slowly, had an obvious
limp, and used her walker or cane. However, later those same days, she was recorded moving notably faster with little discernible limp while in parking lots of stores. She was
recorded driving and was also recorded on another occasion (March 18, 2011) standing outside her vehicle moving around without assistance while talking on a cell phone and smoking. She was
further recorded – albeit with her cane – walking without apparent difficulty down steps in a store as she carried a bag. Her explanations regarding her changing mobility were not
credited. The physician who conducted the independent medical examination on April 1, 2011 stated that, after viewing the videos, he would change his opinion from total disability to a
moderate, partial disability. Although the WCLJ declined to change claimant’s disability, the WCLJ did decide that a discretionary penalty was warranted. The Board affirmed,
concluding that the reasonable inferences from claimant’s testimony and the surveillance videos established that claimant had attempted to misrepresent her condition to influence the
determination regarding benefits. The Board’s decision is supported by substantial evidence in the record and, accordingly, we affirm.

In Matter of Rolleri , claimant filed an appeal from a decision of the Workers’ Compensation Board, filed July 12, 2011, which ruled that claimant did not sustain a compensable accident and denied his claim for workers’ compensation benefits.

Claimant, a volunteer emergency medical technician, filed a claim for workers’ compensation benefits alleging that he slipped and fell on black ice in his driveway while responding to an
emergency call on behalf of the employer in January 2010, which caused injuries to his neck and left leg. Following hearings and the submission of extensive medical records, a Workers’
Compensation Law Judge disallowed the claim, finding that claimant lacked credibility and had failed to establish a compensable accident. The Workers’ Compensation Board upheld
that determination, resulting in this appeal.

Whether a compensable accident has occurred presents a question of fact for resolution by the Board and its decision will be upheld when supported by substantial evidence
(see Matter of Caballero v Fabco Enters., 77 AD3d 1028, 1029 [2010], lv dismissed 16 NY3d 780 [2011]; Matter of Fortunato v Opus III VII Corp., 56 AD3d 905, 906 [2008]). Here, while claimant was injured in January 2010, he did not submit a claim for workers’ compensation benefits until May 2010, reportedly because he was not aware that his accident was compensable as a work-related injury. Notably, there was a sharp contrast in the medical records as to the source of claimant’s injuries before and after the submission of his claim. The initial records, made contemporaneous with claimant’s emergency room visit and treatment by his primary care physician and an orthopedist, list various causes for his injuries but, significantly, make no
mention of a slip and fall accident. Only around the time of the submission of the claim did claimant begin to advance the assertion that he had slipped and fallen while responding to an
emergency call. Moreover, prior to the submission of his claim, claimant reported to his medical providers that he had a history of neck pain stemming from a past automobile accident and that he had
noticed decreased range of motion in his neck over the previous six to eight months, i.e., predating his claimed January 2010 slip and fall. However, once the claim was filed, claimant began
to tell providers that he had no history of neck problems prior to the January 2010 incident – despite the existence of evidence that he had degenerative neck problems – prompting one provider
to note that he “expect[ed] that [claimant] had limitation in his neck range of motion certainly prior to his work injury.” Thus, given the Board’s broad authority to make credibility
determinations and draw reasonable inferences from the conflicting evidence in the record, we find that the determination that claimant failed to establish an injury arising
out of and in the course of his duties as an emergency medical technician, i.e., while working, is supported by substantial evidence (see Matter of Caballero v Fabco Enters., 77 AD3d at
1029; Matter of Neville v Jaber, 46 AD3d 1137, 1138 [2007]; Matter of Papadakis v Volmar Constr., Inc., 17 AD3d 874, 875 [2005]).

In Matter of Mazzaferro , a pro-se claimant filed an appeal from a decision of the Workers’ Compensation Board, filed May 24, 2012, which denied claimant’s request for reconsideration and/or full Board review.

In 1995, claimant suffered a work-related hernia injury while working for the employer. Claimant’s workers’ compensation claim was thereafter established and he was awarded benefits.
Claimant later developed a testicular infarction and subsequently sought to amend his workers’ compensation claim to include the testicular infarction as a consequential injury. Following a
hearing, a Workers’ Compensation Law Judge denied claimant’s application, finding that there was insufficient medical evidence of causality. Upon appeal, the Workers’ Compensation Board
affirmed. Claimant’s application for reconsideration and/or full Board review was thereafter denied, and this appeal ensued .

Since the claimant only appealed the denial of his request for reconsideration and/or full Board review, the merits of the underlying decision were not properly
before the Court (see Matter of Capalbo v Stone & Webster Constr.Servs., 91 AD3d 1263, 1263-1264 [2012]; Matter of Maqsood v McRoberts Protective Agency, 79 AD3d 1547, 1547 [2010], lv
dismissed 16 NY3d 871 [2011]). Accordingly, our analysis is limited to determining whether such denial was arbitrary and capricious or otherwise constituted an abuse of discretion (see
Matter of Capalbo v Stone & Webster Constr. Servs., 91 AD3d at 1264; Matter of Maqsood v McRoberts Protective Agency, 79 AD3d at 1547). In that regard, we decline to disturb the Board’s
decision, as the record reflects that the Board considered all of the relevant material in rendering its initial decision, and claimant did not demonstrate a material change in his condition
or present evidence that was previously unavailable (see Matter of DiPippo v Accurate Signs & Awnings, 88 AD3d 1044, 1045 [2011]; Matter of Maqsood v McRoberts Protective Agency, 79 AD3d at
1547).

In Matter of Tawil, Claimant filed an appeal from a decision of the Workers’ Compensation Board, filed December 19, 2011, which ruled, among other things, that claimant was not entitled to workers’ compensation benefits subsequent to June 30, 2009. Claimant was employed as a school principal for the self-insured employer when he suffered work-related injuries to his ankle, knee and back in November 2008 that rendered him temporarily totally disabled. Claimant filed a claim for workers’ compensation benefits, which was not disputed by the
employer; however, claimant did not begin to receive benefits, as he continued to be paid his salary by the employer. In February 009, claimant received a letter from the employer notifying him
that he had been denied tenure. In response, on February 27, 2009, claimant submitted a letter of resignation, effective June 30, 2009, the last day of the school year. Claimant never
returned to work for the employer, but thereafter secured a teaching position in Florida at a substantially reduced salary, beginning in October 2009.

Meanwhile, in July 2009, claimant sought to begin receiving workers’ compensation benefits. Following hearings, a Workers’ Compensation Law Judge determined, as relevant here, that
claimant was of to lost earnings and reduced earnings payments commencing June 30, 2009 and continuing. Ultimately, the Workers’ Compensation Board modified that determination, in a
full Board decision, concluding that claimant ceased working for reasons unrelated to his disability and failed to demonstrate that his reduction in earnings was causally related to his
compensable injuries and, thus, he was not entitled to awards subsequent to June 30, 2009.

When employment is lost due to factors other than a compensable injury, the claimant bears the burden of establishing that his or her disability contributed to any
subsequent reduction in earnings (see Matter of Smith v Consolidated Edison Co. of N.Y., Inc., 68 AD3d 1299, 1300-1301 [2009]; Matter of Fisher v Bothar Constr., 49 AD3d 1042, 1044
[2008]). Whether reduced earnings are causally related to a compensable injury is a question of fact for resolution by the Board, and its decision will not be disturbed when supported by
substantial evidence (see Matter of Delee v Crouse Hinds Div. of Cooper Indus., 59 AD3d 795, 796 [2009]; Matter of Robideau v Van Rensselaer Manor, 56 AD3d 866, 867 [2008]; Matter of Fisher v
Bothar Constr.,
49 AD3d at 1043). Here, substantial evidence supports the Board’s threshold determination that claimant’s employment ended for reasons unrelated to his disability.
Claimant testified that upon receiving the letter advising that he had been denied tenure, he resigned his position to avoid having the inevitable termination on his employment record. Further, claimant’s resignation letter gave no indication that his resignation was in any way related to his disabilities. Thus, it became claimant’s burden to demonstrate that any subsequent reduction in his earnings was due, at least in part, to his disability. In that regard, claimant testified that, during his job search subsequent to resignation, he applied and interviewed for a school principal position that was no different than the job he performed for the employer. Claimant further testified that he had not informed that prospective employer – or any other during the course of his search – about restrictions due to his disability. Further, claimant opined that it was rather difficult to secure a position in education in New York, which ultimately led him to accept a teaching position in Florida, where it was easier to obtain employment. Thus, claimant’s own testimony established that his reduction in earnings was not caused, even in part, by his disability, but rather by other economic factors; thus, we decline to disturb the Board’s decision (see Matter of Smith v Consolidated Edison Co. of N.Y.,Inc., 68 AD3d at 1300-1301; Matter of Fisher v Bothar Constr., 49 AD3d at 1044).

In Matter of Fatima, Appeal from a decision of the Workers’ Compensation Board, filed February 15, 2012, which ruled that the death of claimant’s husband was not causally related to his employment.

Claimant’s husband (hereinafter decedent) worked on a maintenance crew for the employer and, in January 2011, he was called in to work overtime on a weekend by assisting in
installing an emergency roadway plate on a bridge. The workers assessed the situation and returned to the maintenance facility to gather their tools and wait for the rest of the crew to
arrive. While waiting there, decedent went alone to the locker room where, approximately 20 minutes later, he was found unconscious. He later died. Claimant filed an application for
workers’ compensation death benefits that, following a hearing, a Workers’ Compensation Law Judge denied on the ground that decedent’s death was not causally related to his employment. The
Workers’ Compensation Board agreed, and claimant now appeals.

The Court affirmed “A presumption of compensability exists when an unwitnessed or unexplained death occurs during the course of the decedent’s employment,” but that presumption may be rebutted by substantial evidence to the contrary (Matter of Hanna v Able Body Labor, 62 AD3d 1200, 1201 [2009] [citations omitted]; see Workers’ Compensation Law § 21 [1]; Matter of Nothaft v Hawkeye Constr., Inc., 69 AD3d 1015, 1015 [2010]). In order to rebut the presumption, we note that “irrefutable proof excluding every conclusion other than that offered by the employer” is unnecessary (Matter of Hanna v Able Body Labor, 62 AD3d at 1201). The death certificate, which was issued after an external examination of decedent’s body and an interview with his supervisor, determined the cause of death to be arteriosclerotic cardiovascular disease. According to a medical expert retained by the employer, that condition is typically caused by factors such as hypertension, elevated cholesterol levels and tobacco use, and it was not related to decedent’s work activity.

The expert further testified that he had personally examined decedent in connection with an earlier workers’ compensation claim and found him to be hypertensive, and the record reflects that
decedent failed to obtain treatment for that condition. While there was testimony that strenuous activity could increase the risk that a person with preexisting arteriosclerotic heart
disease might suffer a cardiovascular incident, there is no evidence that decedent was engaged in any physical activity at the time of his demise. Inasmuch as there is substantial
evidence in the record to support the Board’s decision that decedent’s death was not causally linked to his employment, we decline to disturb it (see Matter of Nothaft v Hawkeye Const.,
Inc., 69 AD3d at 1015-1016; Matter of Ruper v Transport Sys. of W. N.Y., 58 AD3d 930, 931-932 [2009]).