IN RE: the Claim of Peter GIGLIA (2022)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers’ Compensation Board, filed January 20, 2021, which ruled, among other things, that claimant violated Workers’ Compensation Law § 114–a and permanently disqualified him from receiving future wage replacement benefits.

On June 15, 2018, claimant suffered work-related injuries to his right leg and right knee, and his claim for workers’ compensation benefits was established.  In May 2020, the employer and its workers’ compensation carrier raised the issue as to whether claimant had violated Workers’ Compensation Law § 114–a by asserting on work activity reports (hereinafter WA–1 forms) that he submitted to the carrier between September 7, 2018 and May 16, 2019 that he had not performed any work for himself or another employer while receiving benefits.  Following a hearing, a Workers’ Compensation Law Judge determined, among other things, that claimant had not violated Workers’ Compensation Law § 114–a.  On administrative appeal, the Workers’ Compensation Board reversed, finding, among other things, that claimant had violated Workers’ Compensation Law § 114–a by failing to report work that he had performed while receiving benefits, and assessed the mandatory penalty of forfeiture of benefits attributable to his misrepresentations and the discretionary penalty of disqualification from receiving future wage replacement benefits.  Claimant appeals.

“[A] claimant who, for the purpose of obtaining disability compensation, or to influence any determination related to the payment thereof, ‘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’ ” (Matter of Galeano v. International Shoppes, 171 A.D.3d 1416, 1417–1418, 97 N.Y.S.3d 360 [2019], quoting Workers’ Compensation Law § 114–a [1];  see Matter of Ringelberg v. John Mills Elec., Inc., 195 A.D.3d 1332, 1333, 150 N.Y.S.3d 156 [2021];  Matter of Horn v. New York City Tr. Auth., 187 A.D.3d 1266, 1268, 132 N.Y.S.3d 171 [2020], lv denied 36 N.Y.3d 903, 2020 WL 7520710 [2020]).  Notably, “an omission of material information may constitute a knowing false statement or misrepresentation” (Matter of Kodra v. Mondelez Intl., Inc., 145 A.D.3d 1131, 1133, 42 N.Y.S.3d 467 [2016];  see Matter of Angora v. Wegmans Food Mkts., Inc., 171 A.D.3d 1419, 1420, 97 N.Y.S.3d 366 [2019]).  “Whether a claimant has violated Workers’ Compensation Law § 114–a is 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” (Matter of Barros v. John P. Picone, Inc., 188 A.D.3d 1397, 1399, 135 N.Y.S.3d 506 [2020] [internal quotation marks and citations omitted]).

The record reflects that claimant represented on WA–1 forms submitted to the carrier dated September 7, 2018, December 10, 2018, February 7, 2019 and May 16, 2019 that he had not engaged in any work for any employer or for his own business since the date of the accident.¹  Claimant's hearing testimony and his social media posts reflect, however, that he had performed side jobs, including concrete work, plaster work and painting between June 2018 and April 2019 for which he was paid.  Claimant further testified that he was not sure if he had informed any medical providers or the carrier of the work activities in question.  In light of the foregoing, the Board's determination that claimant's failure to disclose his work activities constituted a knowing misrepresentation in violation of Workers’ Compensation Law § 114–a is supported by substantial evidence and will not be disturbed (see Matter of Kornreich v. Elmont Glass Co., Inc., 194 A.D.3d 1322, 1323, 149 N.Y.S.3d 340 [2021];  Matter of Horn v. New York City Tr. Auth., 187 A.D.3d at 1268, 132 N.Y.S.3d 171;  Matter of Clarke v. Lomasney Combustion, Inc., 26 A.D.3d 604, 605, 809 N.Y.S.2d 633 [2006]).  To the extent that claimant relies on exculpatory evidence, this created a credibility issue for the Board's resolution (see Matter of Kornreich v. Elmont Glass Co., Inc., 194 A.D.3d at 1323, 149 N.Y.S.3d 340).

Claimant also challenges the penalties imposed by the Board.  As to the mandatory penalty, substantial evidence does not support the Board's determination that the penalty applies to the entire period of claimant's lost wages.  The first instance in the record of a false statement or misrepresentation made by claimant that was directly attributable to wage replacement benefits is the September 7, 2018 WA–1 form in which he denied performing any work since the accident (see Matter of Martinez v. Kingston City Sch. Dist., 140 A.D.3d 1421, 1423–1424, 34 N.Y.S.3d 242 [2016]).  Accordingly, the prior award of benefits to claimant should be rescinded only from September 7, 2018 to April 29, 2019 (see id. at 1424, 34 N.Y.S.3d 242).  Turning to the discretionary penalty of disqualifying claimant from receiving future wage replacement benefits, given the Board's conclusion that claimant's failure to report his work activity was “ongoing and egregious” in that it resulted in awards being paid at a higher rate, the penalty was not disproportionate to his misrepresentations (see Matter of Losurdo v. Asbestos Free, Inc., 1 N.Y.3d 258, 267, 771 N.Y.S.2d 58, 803 N.E.2d 379 [2003];  Matter of Kornreich v. Elmont Glass Co., Inc., 194 A.D.3d at 1323–1324, 149 N.Y.S.3d 340;  Matter of Poupore v. Clinton County Hwy. Dept., 138 A.D.3d 1321, 1324, 30 N.Y.S.3d 365 [2016]).  Claimant's remaining contentions have been considered and found to be without merit.

ORDERED that the decision is modified, without costs, by reversing so much thereof as directed the rescission of benefits received by claimant prior to September 7, 2018;  benefits are rescinded from September 7, 2018 to April 29, 2019;  and, as so modified, affirmed.

FOOTNOTES

1.   Claimant returned to work for the employer on April 29, 2019.

Aarons, J.

Egan Jr., J.P., Reynolds Fitzgerald, Fisher and McShan, JJ., concur.