GREY & GREY
THIRD DEPARTMENT APPELLATE DIVISION DECISIONS 6-28-12
In Matter of Donato, the claimant appealed a finding that that claimant violated Workers’ Compensation Law § 114-a and, among other things, disqualified him from receiving future wage replacement benefits. Claimant suffered established injuries to his ribs, head, neck, back, left shoulder and left clavicle, including a right orbital fracture, pulmonary contusions, collapsed lungs and a traumatic brain injury, and also was diagnosed with adjustment disorder with depressed mood and anxiety condition and post-concussive syndrome. Claimant thereafter was awarded workers’ compensation benefits at a total temporary disability rate beginning in May 2005 and, beginning in November 2005, received benefits at a partial disability rate. The State Insurance Fund, as the workers’ compensation carrier, controverted claimant’s receipt of benefits and, in September 2008, raised the issue of whether claimant fraudulently misrepresented the extent of his incapacity in violation of Workers’ Compensation Law §114-a. Ultimately, the Workers’ Compensation Board ruled that claimant knowingly made false statements for the purpose of receiving benefits and, therefore, all benefits received subsequent to September 8, 2008 were forfeited. In addition, the Board assessed a discretionary penalty and disqualified claimant from receiving wage replacement benefits beginning January 7, 2010. The Court found ,that the Board concluded that claimant was in violation of the statute by misrepresenting the extent of his physical disabilities and denying that he had engaged in certain activities. However, because the Board’s decision contains a number of factual inaccuracies and mischaracterizations of claimant’s testimony, we now reverse. The Board found that claimant testified on September 8, 2008 that “he can only do light work-like activities for short periods of time, up to one hour and a half [and] that he can’t lift things” – an assertion that the Board contends is belied by a surveillance video showing claimant loading a trailer with stones, cutting wood with a chain saw and piling wood for a “significant” period. Contrary to the Board’s assertion, claimant actually testified, “I cannot pick things up, I cannot move things like I used to” (emphasis added), and he readily admitted that he tried to do as much physical work as possible per his doctor’s orders, which included using a chain saw to cut wood used for the furnace that provided heat and hot water to his property. Additionally, the surveillance video reveals that claimant labored to complete the physical tasks depicted – none of which continuously exceeded 90 minutes – and his efforts were punctuated by long periods of inactivity. Claimant also is observed frequently leaning against or grabbing stationary objects to gain stability. And, to the extent that the Board cited the work performed by claimant on a piece of rental property that he owns, the record clearly demonstrates that the property was purchased and the restoration completed prior to claimant’s accident. Finally, we cannot agree that claimant’s response to a question regarding whether he “ever loaded large corrugated plastic pipe onto trailers” qualified as a knowingly false statement pursuant to Workers’ Compensation Law § 114-a. Although the surveillance video indeed showed claimant performing such a task, claimant’s response, as clarified by a follow-up question, simply indicated that he had no memory of the event. (The court also noted that claimant’s medical showed poor memory and disjointed thinking. Even assuming that this equivocal “denial” amounted to a knowingly false statement, we cannot conclude, as the Board did, that such statement was made for the purpose of obtaining benefits – particularly when claimant readily admitted to engaging in activity that was far more physically taxing. Under these circumstances, we cannot say that the Board’s decision was supported by substantial evidence in the record as a whole (see Matter of Engoltz v Stewart’s Ice Cream, 91 AD3d at 1067; compare Matter of Passari v New York City Hous. Auth., 13 AD3d 853, 855 ).
In Matter of Richardson , the Court affirmed the Board’s finding that the claimant had voluntarily removed himself from the labor market. Claimant, a health teacher for the Schenectady City School District, sustained a variety of compensable injuries, including to his head and back, while breaking up a fight between students in February 2006. In December 2008, claimant submitted a letter to the employer, informing it that he would be retiring effective June 2009. Subsequent to claimant’s retirement, the employer and its workers’ compensation carrier sought to suspend benefits based upon claimant’s voluntary withdrawal from the labor market. Ultimately, the Workers’ Compensation Board determined that claimant voluntarily withdrew from the labor market and, consequently, was not entitled to awards after June 24, 2009. Whether claimant’s retirement constituted a voluntary withdrawal from the labor market presented a factual issue for the Board, and its determination will not be disturbed if supported by substantial evidence (see Matter of Hayes v Nassau County Police Dept., 81 AD3d 1045, 1045 ; Matter of Balint v NYS Dept. of Corrections, 79 AD3d 1570, 1570-1571 ). Here, the Board relied on the report of a physician who performed an independent medical examination and opined that, while claimant suffered from a moderate to marked disability, he was capable of working in a modified duty capacity. Furthermore, claimant’s letter informing the employer that he was taking advantage of a very favorable retirement incentive made no mention of the fact that his physical disabilities played a role in his decision to retire. In addition, claimant testified that he never discussed retirement with his doctors, did not advise the employer that he was retiring due to his disabilities and never asked for an accommodation to return to work within his restrictions. Thus, despite the existence of evidence that may have supported a different result, we find the Board’s determination to be supported by substantial evidence (see Matter of Hayes v Nassau County Police Dept., 81 AD3d at 1046;
Matter of Danussi v Chateaugay A.S.A.C.T.C., 56 AD3d 856, 856-857 ; Matter of Lombardi v Brooklyn Union Gas Co., 306 AD2d 704, 705 ).