                          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
                              -3-                522945

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.
                              -4-                  522945

      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
