Controverting a claim based on an alleged false statement or representation by the claimant in his or her application for workers' compensation benefits

Controverting a claim based on an alleged false statement or representation by the claimant in his or her application for workers' compensation benefits

2017 NY Slip Op 06490, Appellate Division, Third Department

A school district employee [Claimant] sustained work-related injuries that caused him to eventually stop working and filed a claim for workers' compensation benefits. He was subsequently classified as having a permanent total disability and was awarded benefits accordingly.*

School district and its workers' compensation carrier [Carrier] subsequently "controverted the claim" alleging that Claimant violated of Workers' Compensation Law §114-a** based upon video surveillance footage allegedly showing Claimant performing activities that Carrier contended demonstrated Claimant's ability to work. A Workers' Compensation Law Judge ultimately ruled that there was no violation of Workers' Compensation Law §114-a. which ruling was affirmed by the Workers' Compensation Board. Carrier appealed the Board's decision.

Workers' Compensation Law §114-a (1) provides that a claimant who "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."

Citing Cirrincione v Scissors Wizard, 145 AD3d 1325, the Appellate Division said that Board "is the sole arbiter of witness credibility, and its determination as to whether a claimant violated Workers' Compensation Law §114-a will not be disturbed if supported by substantial evidence."

Carrier had submitted video surveillance footage showing Claimant's activities at sporting events involving an amateur football team that was organized by Claimant's wife and another individual. Claimant was videotaped walking around the concessions and merchandise areas, helping to move a popcorn machine on one occasion and assisting his disabled daughter take money at the secondary admission gate on another occasion.

Claimant's wife testified that the team was a nonprofit organization and that the money collected through admission, merchandise and concessions was used to cover fixed expenses such as liability insurance and the field rental. She stated that the team relied on the efforts of volunteers and that Claimant did not have specific duties, but was present at the games to support the team. Claimant also testified that he attended the games to support the team and did not work, although he acknowledged that he had assisted his disabled daughter collect money at the back gate.

The Appellate Division said considering this testimony the Board could reasonably conclude that Claimant's activities were minimal and not inconsistent with the representations that he made on the questionnaires provided to the carrier.

Holding that substantial evidence supported the Board's finding that Claimant did not violate Workers' Compensation Law §114-a, the Appellate Division declined to disturb the Board's decision.

* The Workers' Compensation Board subsequently modified this decision and ruled that Claimant sustained a permanent total industrial disability.

** § 114-a of the Workers' Compensation Law provides for the "Disqualification for false representation" as follows: "1. If for the purpose of obtaining compensation pursuant to section fifteen of this chapter, 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. Any penalty monies shall be paid into the state treasury."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06490.htm

Claimant for unemployment insurance benefits penalized for making willful misrepresentations to obtain benefits

Claimant for unemployment insurance benefits penalized for making willful misrepresentations to obtain benefits

2017 NY Slip Op 06489, Appellate Division, Third Department

Claimant, a part-time employee, certified that she had not earned more than $405 before taxes as a result of such employment. The Department of Labor, however, determined that Claimant was ineligible to receive unemployment benefits for specified weeks on the basis that she was not totally unemployed and her earnings exceeded the statutory limitation of $405 a week. As a result, Claimant was found to have received an over-payment of benefits and emergency benefits, which were recoverable. As a result, Claimant's right to receive future benefits was reduced by a specified number of effective days and the Department imposed specified monetary penalties on the basis that she made willful misrepresentations to obtain benefits.

Ultimately the Board reviewed the record and determined that Claimant had made a willful misrepresentations to obtain benefits for certain period of her unemployment and sustaining the charges imposed as the result of over-payments, the reductions of her right to receive certain payments in the future and the monetary penalties imposed that were associated with those misrespresented periods of unemployment. Claimant appealed.

The Appellate Division found that substantial evidence supports the Board's determination that Claimant made willful false statements to obtain certain benefits, explaining that "[i]t is well settled that the question of whether a claimant ha[s] made . . . willful misrepresentation[s] to obtain benefits is a factual issue for the Board to resolve and will be upheld if supported by substantial evidence." Significantly, the court observed that "there is no acceptable defense to making a false statement . . . and a claim that the misrepresentation was unintentional is not sufficient."

The court noted that the record shows that Claimant had received an unemployment insurance handbook that specified that she was eligible to receive partial benefits as a part-time worker if, among other things, she earned less than $405 in a week. It rejected her contention that she relied on a formula provided by a Department of Labor representative in order to calculate her weekly wage — rather than simply dividing the amount shown on her biweekly pay stub by two. The Appellate Division characterizing Claimant's argument as "unavailing," considering that "at no point did Claimant inform the representative that she was receiving biweekly pay stubs that showed that she was, in fact, earning amounts greater than $405 per week."

Finding that "[u]nder these circumstances, substantial evidence supports the Board's determination" that Claimant made willful misrepresentations, the Appellate Division affirmed the Board's decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06489.htm

Reimbursement for wages paid to workers' compensation claimant's employer for wages paid during the employee's period of disability

Reimbursement for wages paid to workers' compensation claimant's employer for wages paid during the employee's period of disability

Collins v Montgomery County Sheriff's Dept., 2017 NY Slip Op 06487, Appellate Division, Third Department

A Montgomery County deputy sheriff [Claimant] sustained a work-related injury. His claim for workers' compensation benefits was ultimately established and he was awarded disability benefits.

The Montgomery County Sheriff Department [Department] a "self-insured workers' compensation employer" paid Claimant his full weekly wages for the period November 29, 2011 through May 30, 2012 and filed a timely reimbursement request with the Workers' Compensation Board. The Department and Claimant then entered into a stipulation establishing that Claimant had sustained a 21% schedule loss of use of his right leg, payable from November 28, 2011 to February 16, 2012 at the temporary total disability rate, with the balance payable at the permanent partial disability rate and the Department was "to take credit for all prior payments."

Claimant then requested a hearing to address whether, pursuant to the terms of the parties' stipulation, the Department was entitled to reimbursement out of his schedule award for the full wages previously paid or whether a late payment penalty should be imposed against the Department for an underpayment of compensation.

A Workers' Compensation Law Judge [WCLJ] determined that the language of the stipulation permitted the Department to obtain reimbursement for the full wages paid to Claimant during compensable lost time and that there was no underpayment. The WCLJ also denied Claimant's request for imposition of a penalty. The Workers' Compensation Board affirmed the WCLJ's ruling and Claimant appeal the Board's decision.

The Appellate Division affirmed the Board's decision, noting that Workers' Compensation Law §25 (4)(a) provides that, "[i]f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid instal[l]ment or instal[l]ments of compensation due, provided [the employer's] claim for reimbursement is filed before [an] award of compensation is made."

In addition, said the court, "it is well settled that, where a claimant receives a schedule loss of use award, the employer is entitled to full reimbursement of the payments made during the period of disability."

As to Claimant's argument that the Board had "departed from prior precedent without explanation.," the Appellate Division explained that:

1. The Board was not required to explain the different holdings in the various cases cited by Claimant;

2. Here, in contrast to the Board holdings in prior cases cited by Claimant, "the parties' stipulation specifically indicated that the [Department] was 'to take credit for all prior payments' [emphasis by the Appellate Division] — without any distinction drawn between wages, awards or compensation;"

3. At the Workers' Compensation Board hearing before the WCLJ at which the stipulation was executed, Claimant indicated that he was aware that the Department was entitled to take credit for any prior indemnity payments that he had received; and

4. The WCLJ order directed the Department to "take credit for prior payments."

Although, said the Appellate Division, "[a] statutory or regulatory right may generally be waived by a stipulation or by conduct evincing an intent to forgo that right," in this instance the Board's reading of the parties' stipulation that the Department did not intend to waive its right to reimbursement is supported by substantial evidence. Accordingly, the court declined to "disturbed" the Board's determination and affirmed its decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06487.htm