IN RE: the Claim of Diana JORDAN (2007)

Appeal from a decision of the Workers' Compensation Board, filed March 22, 2006, which ruled that claimant violated Workers' Compensation Law § 114–a and disqualified her from receiving future wage replacement benefits.

Claimant, a registered nurse, sustained work-related injuries to her back, coccyx and left wrist in March 2001.  She collected workers' compensation benefits between March 2001 and March 2005, until benefits were suspended due to a finding, by the Workers' Compensation Law Judge (hereinafter WCLJ), that claimant made a false representation in violation of Workers' Compensation Law §§ 114–a.  After a review by the Workers' Compensation Board, the finding of fraud was sustained and the discretionary penalty imposed by the WCLJ was modified to a permanent disqualification from the receipt of further indemnity benefits.  Claimant appeals and we affirm.

The Board's determination is based upon substantial evidence and must be upheld (see Matter of Henry v. Bass–Masci, 32 A.D.3d 635, 636, 820 N.Y.S.2d 166 [2006];  Matter of Lopresti v. Washington Mills, 23 A.D.3d 725, 726, 803 N.Y.S.2d 317 [2005];  Matter of Phelps v. Phelps, 277 A.D.2d 736, 738, 716 N.Y.S.2d 160 [2000] ).  Pursuant to Workers' Compensation Law § 114–a, a claimant may be disqualified from receiving compensation and may be subject to disqualification if he or she knowingly makes a false statement or representation as to a material fact for the purpose of obtaining compensation or influencing a determination regarding the payment of compensation (see Workers' Compensation Law § 114–a [1] ).  The Court of Appeals has found that “a fact is material ․ so long as it is ‘significant or essential to the issue or matter at hand’;  therefore, a false statement need not affect the dollar value of an award to be material” (Matter of Losurdo v. Asbestos Free, 1 N.Y.3d 258, 265, 771 N.Y.S.2d 58, 803 N.E.2d 379 [2003], quoting Black's Law Dictionary 611 [7th ed. 1999];  see Matter of Lopresti v. Washington Mills, 23 A.D.3d at 726, 803 N.Y.S.2d 317).

 Here, claimant received medical treatment for prior injuries to her back and neck in 1996 and 1997.  Regarding the 1997 injury, she was prescribed medication, a course of physical therapy and was absent from work for a six-week period while receiving workers' compensation benefits.  Despite being specifically questioned concerning previous injuries to her neck and back in connection with her current injury, claimant failed to inform any of the numerous medical professionals that she saw in connection with this injury that she had suffered from prior work-related injuries to her neck and back (see Matter of Husak v. New York City Tr. Auth., 40 A.D.3d 1249, 1249–1250, 836 N.Y.S.2d 319 [2007];  Matter of Bowes v. Gulinello's Town & Country, 3 A.D.3d 805, 806, 771 N.Y.S.2d 266 [2004] ).  Although claimant testified as to her reasons for such “omission,” her testimony presented a credibility issue to be resolved by the Board (see Matter of Husak v. New York City Tr. Auth., 40 A.D.3d at 1250, 836 N.Y.S.2d 319;  Matter of Jacob v. New York City Tr. Auth., 26 A.D.3d 631, 632, 809 N.Y.S.2d 618 [2006] ).  Seeing the omission as a false denial of a previous injury to the injured area for which compensation is sought, we agree with the determination that the omission was not only significant but also material (see Matter of Losurdo v. Asbestos Free, 1 N.Y.3d at 265, 771 N.Y.S.2d 58, 803 N.E.2d 379;  Matter of Husak v. New York City Tr. Auth., 40 A.D.3d at 1249–1250, 836 N.Y.S.2d 319).

Next addressing the Board's modification of the penalty imposed by the WCLJ, we find the Board to have met its obligation to provide an explanation for its determination (see Matter of Losurdo v. Asbestos Free, 1 N.Y.3d at 267, 771 N.Y.S.2d 58, 803 N.E.2d 379;  Matter of McCormack v. Eastport Manor Constr., 19 A.D.3d 826, 829, 796 N.Y.S.2d 748 [2005] ).  As a discretionary penalty in the form of a permanent disqualification has been upheld under similar circumstances (see e.g. Matter of Retz v. Surpass Chem. Co., Inc., 39 A.D.3d 1037, 1039, 834 N.Y.S.2d 389 [2007];  Matter of Harabedian v. New York Hosp. Med. Ctr., 35 A.D.3d 915, 916, 825 N.Y.S.2d 569 [2006];  Matter of Losurdo v. Asbestos Free, Inc., 29 A.D.3d 1072, 1073, 814 N.Y.S.2d 389 [2006], lv. denied 8 N.Y.3d 805, 831 N.Y.S.2d 771, 863 N.E.2d 1023 [2007] ), we cannot conclude that it was disproportionate to the underlying offense.

ORDERED that the decision is affirmed, without costs.

PETERS, J.

CREW III, J.P., SPAIN, LAHTINEN and KANE, JJ., concur.