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
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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. 
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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