Claim of Kestler v. Old Castle Callanan Industries, Inc.
In the Matter of the Claim of Ed Kestler, Appellant-Respondent v. Old Castle Callanan Industries, Inc., Workers' Compensation Board
Full Opinion (html_with_citations)
Cross appeals from a decision of the Workersâ Compensation Board, filed July 17, 2006, as amended by decision filed July 31, 2006, which ruled, among other things, that claimant violated Workersâ Compensation Law § 114-a and disqualified him from receiving wage replacement benefits.
In 2003, claimant filed a claim for workersâ compensation benefits alleging that he had sustained injuries to his neck and back from regularly operating a front-end loader with mismatched tires. At an ensuing hearing, claimant testified that he had no back or neck problems prior to his claimed work-related injuries, but the employer presented evidence of a history of prior similar injuries. Ultimately, the Workersâ Compensation Law Judge (hereinafter WCLJ) found, among other things, that claimant had not violated Workersâ Compensation Law § 114-a and that his injuries were causally related to his employment.
Upon review, the Workersâ Compensation Board modified, determining that claimant had violated Workersâ Compensation Law § 114-a by his testimony at the hearing and by his failure to disclose his medical history to his treating physicians. As a result, the Board disqualified him from receiving workersâ compensation wage replacement benefits. First, the Board
The Boardâs determination that claimant violated Workersâ Compensation Law § 114-a will be upheld so long as it is supported by substantial evidence (see Matter of Husak v New York City Tr. Auth., 40 AD3d 1249, 1250 [2007]; Matter of Bottieri v New York State Dept. of Taxation & Fin., 27 AD3d 1035, 1036 [2006]). A review of the record reveals the existence of such evidence. Claimant testified before the WCLJ that he never had any neck or back problems prior to the 2003 claim. Additionally, both the testimony and the medical reports of claimantâs treating physicians indicate that claimant represented to them that he had not sustained any prior similar injuries. However, the record reveals that between 1996 and 2001, claimant documented in various medical questionnaires that he had a history of back and neck pain due to previous car accidents, a skiing injury and a work-related head injury. Claimant also informed the independent medical examiner in 2004 that he had been receiving chiropractic treatments on his neck and back for the past five years. Accordingly, we will not disturb the Boardâs finding of a violation of Workerâs Compensation Law § 114-a.
With respect to the employerâs challenge to the Boardâs implicit affirmance of the WCLJâs determination that claimantâs injuries were causally related to his employment thereby entitling him to continued medical benefits, we note simply that this determination is supported by the requisite substantial evidence of some medical testimony of causality (see e.g. Matter of Hargraves v Dormann Lib., 18 AD3d 1105, 1106 [2005]; compare Matter of Ceselka v Kingsborough Community Coll., 281 AD2d 842, 842-843 [2001]; Matter of Estate of Matusko v Kennedy Valve Mfg. Co., 296 AD2d 726, 728 [2002], lv denied 99 NY2d 504 [2002]), notwithstanding claimantâs false representations.
Cardona, P.J., Crew III, Feters and Spain, JJ, concur. Ordered that the decision is affirmed, without costs.