Failure of Injured NY Worker to Disclose Auto Accident to IME Physician Results in Loss of Benefits
The New York Workers’ Compensation Board was within its powers when it found an injured worker had violated N.Y. Workers’ Comp. Law § 114-a, by failing to disclose on an intake form at the office of a physician conducting an independent medical examination that he had been involved in a serious auto accident after the date of his work-related injury [Matter of Lopez v. Clean Air Quality Servs. Inc., 2021 N.Y. App. Div. LEXIS 5522 (3d Dept., Oct. 7, 2021)]. The fact that the intake form had been completed by his wife made no difference, said the court, since he had signed it. The Board was also within its discretion when it imposed a discretionary permanent disqualification from receiving future indemnity benefits.
Background
In May 2014, claimant sustained a work-related injury to his right hand. His claim was established for injuries to his right hand and right index finger, as well as consequential right hand complex regional pain syndrome and exacerbation of anxiety and depression, and he was awarded indemnity benefits. Claimant, accompanied by his wife, presented himself for an August 25, 2014 independent medical examination by an orthopedic surgeon.
Claimant’s wife filled out an intake questionnaire regarding claimant’s injuries and medical history, which claimant then signed. One question asked if claimant “had any subsequent injuries or accidents” since the work-related accident. Claimant’s wife answered, “Back pain.” Claimant, however, had been involved in a roll-over motor vehicle accident in June 2014 and was hospitalized overnight. The emergency department admissions assessment noted that claimant had a right arm abrasion, among other injuries. The employer and its carrier alleged that claimant had violated N.Y. Workers’ Comp. Law § 114-a by failing to, among other things, disclose during the IME that he was involved in a motor vehicle accident.
WCLJ & Board Decisions
The WCLJ found that claimant had violated N.Y. Workers’ Comp. Law § 114-a and imposed a discretionary penalty of a reduction in ongoing indemnity benefits of $400 per week for 26 weeks. On administrative appeal, the Board modified the WCLJ’s decision by increasing the mandatory penalty of disqualification from indemnity benefits from August 25, 2014 to July 16, 2019, i.e., the date of the IME through the date of the hearing at which claimant and his wife testified. Finding claimant’s conduct sufficiently egregious, the Board also permanently disqualified him from receiving future indemnity benefits. Claimant’s subsequent application for reconsideration and/or full Board review was denied. Claimant appealed.
Appellate Decision
The appellate court first observed that claimant had not challenged the finding that he violated § 114-a. He had only argued that the mandatory and discretionary penalties imposed were inappropriate. The appellate court noted that the Board had discredited the explanation of claimant’s wife that she did not understand the word “subsequent” on the intake questionnaire, particularly when she answered “No” to a comparable question on an intake questionnaire at a second IME with in December 2014.
The court stressed that judicial review of an administrative penalty was limited to whether the penalty constituted an abuse of discretion as a matter of law and, as such, a penalty must be upheld unless it was so disproportionate to the offense as to be shocking to one’s sense of fairness. The court observed that the Board explained that the conduct of claimant’s wife—a high school graduate who had attended college for nine months—falsely testifying at the hearing, together with claimant’s failure to disclose the motor vehicle accident at any IME, was so egregious that a permanent disqualification was warranted. The court accordingly found no abuse of the Board’s discretion of permanently disqualifying claimant from future indemnity benefit.