Matter of Kodra v. Mondelez International, Inc.Matter of Kodra v. Mondelez International, Inc.
Garry, J. Appeal from a decision of the Workers’ Compensation Board, filed March 24, 2015, which ruled that claimant violated
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 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 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 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 busi 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 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 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 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.