In the Matter of the Claim of Albert Belcher v Dominican Village Inc. et al.; Workers' Compensation Board
Attorneys and Parties
Brief Summary
Workers' compensation—application of Workers' Compensation Law § 114-a [disqualifies a claimant who, to obtain or influence benefits, knowingly makes a false statement or representation as to a material fact from receiving compensation directly attributable to that falsehood] and whether permanent disqualification is a proportionate discretionary penalty where a claimant failed to disclose postretirement work to physicians.
A Workers' Compensation Law Judge (WCLJ) found a § 114-a violation based on nondisclosure of work to medical examiners, imposed the mandatory forfeiture and the discretionary penalty of permanent disqualification from indemnity benefits; the Workers' Compensation Board (WCB) affirmed.
The discretionary penalty permanently disqualifying claimant from all future wage replacement benefits.
The Appellate Division held the permanent disqualification was disproportionate given mitigating factors: claimant voluntarily disclosed his postretirement investigative work to the WCB and at hearing before any awards, was forthcoming in testimony, and complied with directives, distinguishing this case from egregious or surveillance-driven misconduct.
Background
Claimant, a security director, injured his lower back in June 2022, continued working with restrictions, then notified his employer in November 2022 that he would retire in December 2022 after a request for further schedule reduction was denied. After the claim was established, the employer/carrier raised unrelated retirement and voluntary withdrawal issues. At hearings on indemnity, the carrier alleged a violation of Workers' Compensation Law § 114-a based on claimant’s testimony that he had performed work in his private investigation business, which he had not disclosed to his treating orthopedic surgeon or during the carrier’s independent medical examination (IME).
Lower Court Decision
The WCLJ found claimant knowingly made a material misrepresentation by failing to disclose postretirement work to medical examiners; the orthopedic surgeon had opined total temporary disability while noting claimant had not returned to work and testified that work status would affect disability opinions, and the IME report recorded claimant as out of work since December 2022. The WCLJ imposed the mandatory penalty and, as a discretionary sanction, permanently disqualified claimant from future indemnity benefits, deeming the conduct egregious. The WCB affirmed, crediting the medical evidence and rejecting claimant’s explanation.
Appellate Division Reversal
The court held substantial evidence supported the § 114-a violation and mandatory forfeiture, but modified to reverse the permanent disqualification. Applying abuse-of-discretion review (penalty must not be so disproportionate as to shock one’s sense of fairness), the court found mitigating facts: claimant self-reported his investigative work to the WCB and at hearing before any awards issued, answered questions forthrightly, provided tax returns, and showed job search efforts. Unlike cases involving surveillance contradicting testimony or pervasive deception leading to inflated awards, the record did not show sufficiently egregious misconduct to warrant total future disqualification.
Legal Significance
Confirms that failing to disclose postretirement work to physicians supports a Workers' Compensation Law § 114-a violation, but reiterates that permanent disqualification is reserved for egregious deception. Mitigating circumstances—early self-disclosure to the Workers' Compensation Board (WCB), cooperation, and absence of surveillance-contradicted claims—can render a permanent bar disproportionate under the abuse-of-discretion standard.
A claimant’s nondisclosure of work to doctors can trigger a § 114-a violation and mandatory forfeiture, but permanent disqualification from future wage benefits will be set aside where the claimant promptly self-discloses, is candid, and the conduct is not egregious.