Claim of Calderon v. New York City Department of Corrections ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: November 17, 2016                   522945
    ________________________________
    In the Matter of the Claim of
    FERNANDO CALDERON,
    Appellant,
    v
    MEMORANDUM AND ORDER
    NEW YORK CITY DEPARTMENT OF
    CORRECTIONS,
    Respondent.
    WORKERS' COMPENSATION BOARD,
    Respondent.
    ________________________________
    Calendar Date:   October 12, 2016
    Before:   Peters, P.J., McCarthy, Lynch, Rose and Mulvey, JJ.
    __________
    Rella & Associates, PC, Sleepy Hollow (Stuti S. Desai of
    counsel), for appellant.
    Zachary W. Carter, Corporation Counsel, New York City (Gati
    J. Dalal of counsel), for New York City Department of
    Corrections, respondent.
    Eric T. Schneiderman, Attorney General, New York City
    (Marjorie S. Leff of counsel), for Workers' Compensation Board,
    respondent.
    __________
    McCarthy, J.
    Appeal from a decision of the Workers' Compensation Board,
    filed August 18, 2015, which ruled, among other things, that
    claimant violated Workers' Compensation Law § 114-a and
    disqualified him from receiving further workers' compensation
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    benefits.
    Claimant was awarded workers' compensation benefits based
    upon injuries he suffered at work to both his hands and his right
    foot in October 2012. Thereafter, his treating physician opined
    that claimant had a schedule loss of use attributable to the 2012
    injuries of 15% in each hand and 22.5% in his right foot. An
    independent medical examiner found that claimant had a 15%
    schedule loss of use of his left hand and a 10% schedule loss of
    use of his right hand and foot. The employer raised the issue
    that claimant had violated Workers' Compensation Law § 114-a (1)
    by failing to disclose his prior injuries and schedule loss of
    use awards on his application for benefits or to his physician.
    Claimant's counsel thereafter submitted an addendum from
    claimant's physician, who had reevaluated claimant in light of
    the prior injuries, maintaining the 15% schedule loss of use of
    both hands, but apportioning 3.5% of the loss of use of the right
    hand and 2.5% of the loss of use of the left hand to the October
    2012 injury, with the remainder apportioned to prior injuries. A
    second addendum was submitted two months later, in which the
    physician opined that claimant had a total schedule loss of use
    of 26.5% of the right hand and 33% of the left hand, of which 15%
    was attributable to the October 2012 injuries to each hand.
    Following a hearing, a Workers' Compensation Law Judge
    (hereinafter WCLJ) found that claimant had a 15% schedule loss of
    use of both hands and a 10% schedule loss of use of his right
    foot. The WCLJ also determined that claimant had violated
    Workers' Compensation Law § 114-a (1) by failing to list his
    prior injuries on his application or inform the medical providers
    of the injuries and disqualified him from receiving current and
    future compensation benefits. The WCLJ also assessed both
    claimant and his counsel a $500 penalty pursuant to Workers'
    Compensation Law § 114-a (3) (i) and (ii) for continuing the
    proceeding without reasonable grounds – based upon the submission
    of the treating physician's second addendum with knowledge that
    it "contained bogus figures." Claimant's counsel was also
    assessed two other $500 penalties under that statute – for
    raising allegations that the employer should be assessed a
    penalty pursuant to Workers' Compensation Law § 114-a (3) (ii)
    and for counsel's actions regarding the deposition of the
    -3-                522945
    independent medical examiner. The Workers' Compensation Board
    affirmed this decision and claimant now appeals.
    "The Board's determination as to whether a claimant has
    made a material misrepresentation in violation of Workers'
    Compensation Law § 114-a will not be disturbed if supported by
    substantial evidence" (Matter of Hamza v Steinway & Sons, 88 AD3d
    1033, 1033 [2011] [citations omitted]; see Matter of Poulton v
    Griffin Mfg. Co., 102 AD3d 1071, 1071 [2013]). Claimant admitted
    that he did not disclose the prior injuries on his benefits
    application or to any medical providers, despite being asked and
    despite the fact that he had several prior injuries and schedule
    loss of use awards regarding his hands prior to the October 2012
    injuries, including an injury that occurred earlier in 2012.
    Given claimant's failure to disclose his previous injuries and
    the related schedule loss of use awards, the Board's
    determination that he made a material misrepresentation in
    violation of Workers' Compensation Law § 114-a (1) is supported
    by substantial evidence and will not be disturbed (see Matter of
    Siddon v Advance Energy Tech., 98 AD3d 1202, 1203 [2012]; Matter
    of Poli v Taconic Correctional Facility, 83 AD3d 1339, 1340
    [2011]).
    Regarding the penalties assessed, the Board may assess
    costs and fees against a party or counsel who institutes or
    continues a proceeding in respect of a claim without reasonable
    ground (see Workers' Compensation Law § 114-a [3] [i], [ii]) and
    the Board's imposition of a penalty under this statute will not
    be disturbed if supported by substantial evidence (see Matter of
    Banton v New York City Dept. of Corr., 112 AD3d 1195, 1196
    [2013]). Here, the Board assessed $500 penalties against both
    claimant and his counsel for submitting the second addendum
    prepared by claimant's physician. While the Board rejected that
    medical opinion, we do not find substantial evidence in the
    record supporting its determination that the physician's opinion
    as to claimant's schedule loss of use "constituted a knowingly
    false statement" by claimant or his counsel.
    -4-                  522945
    As to the remaining penalties assessed against claimant's
    counsel, we find that substantial evidence in the record supports
    the Board's assessment of the $500 penalty for raising
    unsupported and unsubstantiated allegations that the employer, by
    accusing claimant of making misrepresentations by failing to
    inform the medical providers of his prior injuries, should be
    assessed a penalty pursuant to Workers' Compensation Law § 114-a
    (3) (ii) and requesting a hearing on that issue. Finally, in our
    view, counsel's actions regarding the independent medical
    examiner's deposition, including the failure to participate in
    the deposition, do not constitute the institution or continuation
    of a proceeding in order to assess a penalty under the statute.
    Claimant's remaining contentions have been considered and found
    to be without merit.
    Peters, P.J., Lynch, Rose and Mulvey, JJ., concur.
    ORDERED that the decision is modified, without costs, by
    reversing so much thereof as (1) assessed a penalty of $500
    against claimant and claimant's counsel pursuant to Workers'
    Compensation Law § 114-a (3) (i) and (ii) for submitting the
    physician's second addendum and (2) assessed a $500 penalty
    against claimant's counsel pursuant to Workers' Compensation Law
    § 114-a (3) (ii) regarding the independent medical examiner's
    deposition, and, as so modified, affirmed.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 522945

Judges: McCarthy, Peters, Lynch, Rose, Mulvey

Filed Date: 11/17/2016

Precedential Status: Precedential

Modified Date: 11/1/2024