Matter of Kodra v. Mondelez International, Inc. ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: December 1, 2016                   522342
    ________________________________
    In the Matter of the Claim of
    KEITH KODRA,
    Appellant,
    v
    MONDELEZ INTERNATIONAL, INC.
    et al.,                                  MEMORANDUM AND ORDER
    Respondents.
    WORKERS' COMPENSATION BOARD,
    Respondent.
    ________________________________
    Calendar Date:   October 18, 2016
    Before:   Peters, P.J., Garry, Devine, Clark and Aarons, JJ.
    __________
    Buckley, Mendleson, Criscione & Quinn, PC, Albany (Rebeccah
    W. Kane of counsel), for appellant.
    Walsh & Hacker, Albany (Matthew C. Kidd of counsel), for
    Mondelez International, Inc. and another, respondents.
    __________
    Garry, J.
    Appeal from a decision of the Workers' Compensation Board,
    filed March 24, 2015, which ruled that claimant violated Workers'
    Compensation Law § 114–a and disqualified him from receiving
    future wage replacement benefits.
    Claimant had an established claim for a work-related injury
    to his shoulder in January 2013, after which he continued to work
    light duty until he underwent shoulder surgery in May 2013.
    Claimant was thereafter classified as temporarily totally
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    disabled and remained out of work, receiving wage replacement
    benefits until October 2013, when he returned to regular duty
    work. The employer raised the issue of whether claimant had
    violated Workers' Compensation Law § 114-a and submitted video
    surveillance taken in July and August 2013 that captured him
    performing lawn mowing and some related activities. Following a
    hearing at which claimant admitted that he had collected
    temporary total disability benefits while actively working in his
    lawn care business, a Workers' Compensation Law Judge concluded
    that claimant had not violated Workers' Compensation Law § 114-a.
    The Workers' Compensation Board reversed, finding that a
    statutory violation had been established. The Board imposed a
    penalty equal to the wage replacement benefits paid to claimant
    between August 12, 2013 and October 8, 2013 and, further,
    permanently disqualified him from receiving any future wage
    replacement payments. Claimant appeals.
    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." Any such compensation already paid to a
    claimant must be rescinded by the Board (see Workers'
    Compensation Law § 114–a [1]), which "also has the discretionary
    authority to disqualify [a] claimant from receiving any future
    wage replacement benefits" (Matter of Martinez v Kingston City
    Sch. Dist., 140 AD3d 1421, 1422 [2016]). In making this
    determination, "the Board is the sole arbiter of witness
    credibility and its determination that a claimant violated
    Workers' Compensation Law § 114–a will be upheld if supported by
    substantial evidence" (Matter of Snyder v Cring, 140 AD3d 1554,
    1554 [2016] [internal quotation marks, brackets and citations
    omitted]).
    Claimant testified that in addition to his employment, he
    has independently owned and operated a lawn care and plowing
    business since 1994, with no employees. He admitted that, as he
    improved after his surgery, he resumed performing lawn cutting
    services approximately twice a week while collecting wage
    replacement benefits attributable to a temporary total disability
    from his regular employment, as documented by his treating
    -3-                522342
    surgeon. He testified that he informed the surgeon that he was
    working part time in his lawn care business and that, after
    discussing the type of equipment he was using, the surgeon
    restricted him only from activities that involved lifting his
    injured arm higher than his shoulder. A note in claimant's
    medical records submitted by the surgeon to the workers'
    compensation carrier, included in a report in which the surgeon
    found claimant to be temporarily totally disabled, also stated
    that claimant was working part time in his lawn care business.1
    Claimant further testified that, during the period when he was
    collecting temporary total disability benefits, he twice advised
    his employer that he wanted to return to light duty work, but was
    told each time that he could not do so until cleared by his
    physician.
    In a July 2013 intake form for a medical examination
    requested by the carrier, claimant indicated that he was not
    working, and he reported the same to the carrier's consultant,
    whose report reflects that claimant was not working or
    volunteering "in any manner" and classified him as totally
    disabled. Claimant testified that he misunderstood the intake
    form and intended his negative response about work to indicate
    that he was not working in the primary employment from which he
    had been found to be temporarily totally disabled. In an August
    23, 2013 letter to the carrier, claimant's attorney advised that
    he was only able to perform supervisory work for the lawn care
    business; claimant later admitted that he had been performing
    manual work, but none that violated his surgeon's restrictions
    against lifting his injured arm. Surveillance video taken of
    claimant in August 2013 showed him operating a riding lawnmower
    and briefly using a weed trimmer.
    Contrary to claimant's argument, an omission of material
    information may constitute a knowing false statement or
    misrepresentation (see Matter of Jordan v Saratoga County Pub.
    Health Nurses, 45 AD3d 1074, 1074-1075 [2007]). We thus find
    that substantial evidence supports the Board's credibility
    1
    Claimant's regular employment required use of his arm and
    shoulder in repetitive heavy lifting and pushing.
    -4-                  522342
    determination that claimant's failure to fully describe and
    disclose his lawn mowing activities to the carrier and the
    carrier's consultant at the time of the medical examination
    constituted knowing false statements to obtain workers'
    compensation benefits in violation of Workers' Compensation Law
    § 114-a (1) (see Matter of Martinez v Kingston City Sch. Dist.,
    140 AD3d at 1423; Matter of Poupore v Clinton County Hwy. Dept.,
    138 AD3d 1321, 1322-1324 [2016]).
    We reach a different conclusion as to the Board's
    determination permanently disqualifying claimant from receiving
    any future wage replacement benefits. The applicable standard is
    that the penalty imposed may not be disproportionate to the
    underlying misconduct (see Matter of Harp v New York City Police
    Dept., 96 NY2d 892, 894 [2001]). In cases where this very
    significant sanction has been approved, the underlying deception
    has been deemed "egregious" or severe, or there was a lack of
    mitigating circumstances (Matter of Adams v Blackhorse Carriers,
    Inc., 142 AD3d 1273, 1275 [2016]; see e.g. Matter of Retz v
    Surpass Chem. Co., Inc., 39 AD3d 1037, 1038-1039 [2007]; Matter
    of Harabedian v New York Hosp. Med. Ctr., 35 AD3d 915, 916
    [2006]). Here, the Board provided no rationale supporting its
    determination that this onerous penalty was warranted, and we
    find inadequate support for such a finding upon review.
    Peters, P.J., Devine, Clark and Aarons, JJ., concur.
    ORDERED that the decision is modified, without costs, by
    reversing so much thereof as disqualified claimant from receiving
    all future wage replacement benefits, and, as so modified,
    affirmed.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 522342

Judges: Garry, Peters, Devine, Clark, Aarons

Filed Date: 12/1/2016

Precedential Status: Precedential

Modified Date: 11/1/2024