Matter of Robbins v. Mesivtha Tifereth Jerusalem
(3rd Dept., decided 3/12/2009)
I'm not a doctor, and I don't play one on TV. I haven't even stayed in a Holiday Inn Express recently, but even I know that reaching, turning and bending while washing an all terrain vehicle, walking a large dog without putting any weight on one's cane, fishing and casting in a stream while wearing hip boots, climbing a rocky embankment, carrying a backpack, and crawling under a truck to repair it are inconsistent with a finding of permanent, total disability.
Remarkably, the Workers' Compensation Law Judge did not, even when presented with surveillance video showing the claimant doing all these things. Upon review, the Workers' Compensation Board reversed, finding that claimant had intentionally misrepresented the degree of his disability in order to obtain compensation benefits. The Board imposed a mandatory disqualification penalty of $35,059.10, and permanently disqualified claimant from receiving any further wage replacement benefits pursuant to its discretionary authority.
On the claimant's appeal, the Third Department AFFIRMED the penalty and disqualification, holding:
Never a good thing when one's own treating physician says, "Really? I was under the impression he couldn't do those things."A determination that a claimant has violated Workers' Compensation Law § 114-a will be upheld if it is supported by substantial evidence (see Matter of Losurdo v Asbestos Free, 1 NY3d 258, 266 [2003]; Matter of Kestler v Old Castle Callanan Indus., Inc., 46 AD3d 957, 958 [2007]). Here, the testimony of the independent medical examiner, Robert Zickel, fully supported the carrier's assertion that claimant misrepresented his daily activities. In particular, Zickel testified that claimant's activities depicted on surveillance videos which included footage of claimant reaching, turning and bending while washing an all terrain vehicle, walking a large dog without putting any weight on his cane, fishing and casting in a stream while wearing hip boots, climbing a rocky embankment, carrying a backpack and crawling under a truck to repair it indicated that any disability that he had was minor or mild. Zickel maintained that the depicted activities were "not consistent" with claimant's description of his daily activities upon examination. Moreover, claimant's treating physician, Barry Scheinfeld, indicated that based upon claimant's representations, he was under the impression that claimant was unable to perform the types of activities listed above. In our view, the Board's decision is supported by substantial evidence and, thus, it will not be disturbed (see Matter of Kestler v Old Castle Callanan Indus., Inc., 46 AD3d at 958; Matter of Dishaw v Midas Serv. Experts, 27 AD3d 921, 922 [2006]; Matter of Tomlin v L & B Contr. Indus., 307 AD2d 682, 683 [2003]; Matter of Phelps v Phelps, 277 AD2d 736, 738-739 [2000]).
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