The Third Department upheld the board’s determination that claimant knowingly failed to inform the carrier he was doing some lawn care work while collecting workers’ compensation benefits. The omission was deemed a knowing false statement or misrepresentation warranting return of the benefits paid. However, the board’s ruling claimant was permanently barred from seeking benefits was not warranted by the facts:
… [A]n omission of material information may constitute a knowing false statement or misrepresentation … . 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 Workers’ Compensation Law § 114-a (1) … .
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 … . 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 … . 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. Matter of Kodra v Mondelez Intl., Inc., 2016 NY Slip Op 08136, 3rd Dept 12-1-16
WORKER’S COMPENSATION LAW (FAILURE TO INFORM CARRIER OF LAWN CARE WORK WARRANTED RETURN OF BENEFITS PAID, BUT NOT A PERMANENT BAR ON FUTURE BENEFITS)