                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 21, 2016                    521278
________________________________

In the Matter of the Claim of
   PAUL POUPORE,
                    Appellant,
      v

CLINTON COUNTY HIGHWAY                      MEMORANDUM AND ORDER
   DEPARTMENT et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   February 11, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


      Niles & Bracey, PLLC, Plattsburgh (John M. Crotty of
counsel), for appellant.

      Stafford, Owens, Piller, Murnane, Kelleher & Trombley,
PLLC, Plattsburgh (Thomas M. Murnane of counsel), for Clinton
County Highway Department and another, respondents.

                             __________


Lynch, J.

      Appeal from a decision of the Workers' Compensation Board,
filed October 24, 2014, which ruled, among other things, that
claimant violated Workers' Compensation Law § 114-a and
disqualified him from receiving wage replacement benefits.

      Claimant was injured in 2002 while operating power
equipment on a roadside when the road bank gave way and he fell.
He has an established claim for work-related injuries to his left
                               -2-                521278

ankle and leg, pelvis and lumbar back, and was classified in 2005
as permanently partially disabled. In the years that followed,
he saw numerous treating physicians, continued to use prescribed
narcotic pain medications and received workers' compensation wage
replacement benefits. In 2012, the employer alleged that
claimant had violated Workers' Compensation Law § 114-a based
upon, among other evidence, video surveillance of claimant on
several days in March 2012 by an investigator hired by the
employer. The video depicts claimant engaged in activities that
the employer argued are inconsistent with, among other things,
representations he made to Marco Berard, the orthopedic surgeon
retained by the employer who conducted an independent medical
examination (hereinafter IME) of claimant on April 27, 2012.
Following a hearing at which Berard and the surveillance
investigator testified,1 a Workers' Compensation Law Judge
(hereinafter WCLJ) ruled that claimant had violated Workers'
Compensation Law § 114-a by, among other things, fraudulently
representing his medical condition to medical providers, and
imposed penalties. Upon review, the Workers' Compensation Board
modified, agreeing that claimant had made willful
misrepresentations during the IME in violation of Workers'
Compensation Law § 114-a, imposed a penalty equal to the wage
replacement benefits paid to claimant from April 27, 2012 until
September 14, 20122 and permanently disqualified him from
receiving such benefits thereafter.3 Claimant now appeals.



     1
        Claimant's testimony was precluded by decision of the
WCLJ and he did not testify at the hearings.
     2
        The WCLJ had suspended benefit payments to claimant as of
September 14, 2012.
     3
        The Board modified to the extent of determining that
there was insufficient evidence to support the WCLJ's finding
that claimant had engaged in fraudulent misrepresentations in
order to obtain narcotic medications and the WCLJ's order that
"[n]o further narcotic pain medications are authorized." The
Board ruled that claimant "remains entitled to further causally
related medical care for his established injuries."
                              -3-                521278

      We affirm. Claimant argues that the record does not
contain substantial evidence to support the Board's finding with
regard to Workers' Compensation Law § 114-a, and that the penalty
constitutes an abuse of discretion. Pursuant to Workers'
Compensation Law § 114-a (1), a claimant may be disqualified from
receiving workers' compensation benefits "[i]f for the purpose of
obtaining compensation . . . or for the purpose of influencing
any determination regarding any such payment, [he or she]
knowingly makes a false statement or representation as to a
material fact." A fact is "material" if it is "significant or
essential to the issue or matter at hand," and it need not be
demonstrated here that claimant received compensation to which he
was not otherwise entitled or that he did not sustain a
compensable injury (Matter of Losurdo v Asbestos Free, 1 NY3d
258, 265 [2003] [internal quotation marks and citations omitted];
see Matter of Bowes v Gulinello's Town & Country, 3 AD3d 805, 806
[2004]). Here, the Board's factual finding that claimant
willfully misrepresented his activity capacity and actual
disability status during the IME will not be disturbed as it is
supported by substantial evidence, including Berard's testimony
and IME report and addenda and the surveillance evidence (see
Matter of Dacey v Sweeteners Plus, Inc., 129 AD3d 1405, 1406
[2015]; Matter of Denman v Cobbler's Rest., 106 AD3d 1289, 1290
[2013]).

      As relevant here, the record reflects that claimant
represented to Berard that he "cannot do anything more than
sedentary activity" and then only with the use of significant
amounts of narcotic pain medication, that he was "living a
sedentary lifestyle" and "cannot be involved in any activities"
that go beyond such limited activities, as "any activity" that
requires "physical demand" or "sit[ting] or stand[ing] for
prolonged periods" increases his pain. Claimant also represented
that he "needs help for all of his activities of daily living,"
all of which caused Berard to opine that he was totally disabled
from being able to perform any gainful employment. After
reviewing the investigator's reports summarizing the surveillance
observations of claimant's activities in March 2012, Berard
concluded that, due to the discrepancy between what claimant
reported to him and what was observed during surveillance, his
medical opinion regarding claimant's degree of disability and
                                -4-                521278

capabilities was no longer valid and that he could not offer any
opinion regarding his level of disability or ability to work.
The videos show claimant4 engaged in various activities that are
incompatible with his representations of his physical disability,
such as pumping gas, eating lunch out with his wife, sitting in a
car, and both entering his truck and mounting and dismounting a
motorcycle "with relative ease," as summarized in the
investigator's reports and testimony. Claimant was seen walking,
squatting down and riding without difficulty and exhibited no
signs of pain or impairment even as he put all of his weight on
his left ankle while mounting the motorcycle; he rode in a
forward leaning position for 35 minutes at a time through country
roads and in city traffic, which entailed sharp turns and stops
at traffic lights, during which he supported the motorcycle with
his legs. This evidence amply supported the Board's finding that
claimant's statements to Berard, which exaggerated or
misrepresented his symptoms and physical limitations, concerned
material facts and constituted willful representations of his
actual disability status, resulting in Berard's submission of a
report opining that he had a "total disability," in violation of
Workers' Compensation Law § 114-a (see Matter of Hershewsky v
Community Gen. Hosp., 125 AD3d 1068, 1068-1069 [2015]; see also
Matter of Gramza v Buffalo Bd. of Educ., 125 AD3d 1074, 1075-1076
[2015]; Matter of Michaels v Towne Ford, 9 AD3d 733, 734 [2004]).

      Finally, given the Board's conclusion that claimant's
misrepresentations were "serious and egregious," a finding
supported by the surveillance evidence, we cannot conclude that
the discretionary sanction of permanent disqualification from
future wage replacement benefits is disproportionate to
claimant's material misrepresentations (see Matter of Losurdo v
Asbestos Free, 1 NY3d at 267; Matter of Hammes v Sunrise
Psychiatric Clinic, Inc., 66 AD3d 1252, 1253 [2009]). Claimant's
remaining arguments have been examined and found to be without
merit.

        Garry, J.P., Egan Jr, Devine and Clark, JJ., concur.



    4
         Claimant conceded that he was depicted in the video.
                        -5-                  521278

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
