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
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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. 
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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