Citing Matter of Koratzanis v U.S. Concrete, Inc., 209 AD3d
1075, the Appellate Division noted “Workers’ Compensation Law §114-a
(1) provides, in relevant part, that a claimant who, for the purpose of
obtaining workers’ compensation benefits or influencing any determination
relative thereto, knowingly makes a false statement or representation as to a
material fact shall be disqualified from receiving any compensation directly
attributable to such false statement or representation. Further,
noted the court, “Whether a claimant has violated the statute lies within
the province of the Board,” which is the sole arbiter of witness credibility,
and its decision will not be disturbed if supported by substantial evidence.

In the instant matter, although Claimant told the examining physician that he
retired in 2014, Claimant testified that he has continued to work in a family
flooring business and that he had another job conducting movie audits. Although
Claimant testified that he does not have full range of motion with his left
knee, which he stated does not bend regularly, surveillance videos did not
confirm any physical limitations. 

While Claimant testified that he gave his
best efforts during an independent medical examination and that he has
“good days and bad days,” Claimant’s testimony regarding whether he
was truthful about his physical condition presented “a credibility issue
for the Board to resolve.” In the words of the Appellate Division,
“[Claimant] was also required throughout the underlying proceedings to
provide truthful and accurate information regarding his work activities and
side jobs.”

The court then found that substantial evidence supported the Board’s
determination that “[Claimant] violated Workers’ Compensation Law §114-a” as well as Claimant’s material omissions supported the Board’s imposing “a mandatory penalty.”

The Appellate Division also sustained the Board’s disqualification of Claimant
from receiving future wage replacement benefits, noting “the Board is
vested with the authority — as an exercise of its discretion — to disqualify a
claimant from receiving any future benefits” in addition to imposing the
mandatory penalty, i.e., rescinding the workers’ compensation benefits already
paid a claimant. 

The court opined “The imposition of such discretionary
penalty typically is reserved for situations where the underlying deception has
been deemed egregious or severe, or there was a lack of mitigating
circumstances”, citing Matter of Koratzanis v U.S. Concrete, Inc.,
209 AD3d at 1077.

Pointing out that “Judicial review of the penalty imposed is limited to
whether the penalty constitutes an abuse of discretion as a matter of law and,
as such, a penalty must be upheld unless it is so disproportionate to the
offense as to be shocking to one’s sense of fairness, thus constituting an
abuse of discretion as a matter of law”.

In this instance the Appellate
Division found “the record supports the Board’s finding that [Applicant’s]
misrepresentations were egregious and severe enough to warrant disqualification” and that the court could not conclude that the penalty imposed by the Board was disproportionate to Claimant’s material
misrepresentations.

Click HERE to access the Appellate Division’s
decision posted on the Internet.