Failure to Mention Preexisting Shoulder Injury Tears Away Technician's Benefits

New York, NY (WorkersCompensation.com) – A worker may lose his benefits, as well as access to future benefits, if he fails to mention a prior related injury. 

That’s what happened in Nappi v. Verizon New York, No. 533384 (N.Y. App. Div. 05/12/22) , where a material systems technician for Verizon obtained workers' compensation benefits for a right shoulder injury he purportedly sustained on Oct. 26, 2018.  

The technician established a work-related injury to the shoulder and obtained a rotator cuff injury diagnosis. He received awards from Feb. 4, 2019, to June 15, 2019. But there were a couple of things he neglected to mention to the doctors who independently evaluated him. 

The employer's workers' compensation carrier filed a request for further action raising a potential violation of Workers' Compensation Law § 114-a — specifically, claimant's failure to disclose that he previously received medical treatment for his right shoulder. Ultimately, the Workers' Compensation Board agreed. The Board rescinded the awards the technician had already received. Next, it imposed a discretionary penalty, permanently disqualifying him from receiving wage replacement benefits with respect to the claim. 

Workers' Compensation Law § 114-a (1) provides that a claimant who, for the purpose of obtaining benefits or influencing a benefits determination, "knowingly makes a false statement or representation as to a material fact . . . shall be disqualified from receiving any compensation directly attributable to such false statement or representation.”  

The court pointed out that courts have found a material, false misrepresentation where a claimant downplays the significance of preexisting conditions, prior injuries, or treatment. 

The court agreed that the technician violated § 114-a by failing to consistently and affirmatively disclose that he had been receiving treatment for pain in his right shoulder since 2016 and that he had been diagnosed with bursitis in 2017. Moreover, the court observed, the technician failed to mention the prior treatment on the intake forms that he completed for the independent medical examinations. In fact, the evaluating physicians’ records indicated he denied having any prior injuries to his right shoulder and that the onset of shoulder symptoms coincided with his work-related accident. 

“Notably, it was not until after the carrier raised the issue of a Workers' Compensation Law § 114-a violation that claimant advised one of the independent medical examiners that he previously had been diagnosed with bursitis,” the court wrote. The Board was free, the court stated, to reject the technician’s “self-serving explanations” that he was confused by the intake forms. 

Given that the evidence demonstrated that the technician downplayed or omitted mention of his preexisting shoulder condition and treatment, the court concluded there was no basis for disturbing the Board’s finding of misrepresentation.  

Future benefits 

Next, the court addressed the Board’s discretionary penalty, which permanently cut off the technician’s ability to secure future benefits with respect to the claim. The court pointed out that it could disturb the Board’s finding only if it determined the penalty constituted abuse of discretion as a matter of law. That was not the case here. The court noted that the Board expressly found the technician’s lack of candor to be sufficiently egregious and severe to justify the penalty.  

“In support of such penalty, the Board noted claimant's belated disclosure of his prior diagnosis of bursitis and, more significantly, his corresponding failure to apprise the independent medical examiners of his ongoing shoulder pain and treatment in the weeks leading up to his work-related accident,” the court wrote. 

Because the Board gave a cogent explanation for imposing the penalty, the court declined to disturb it.