Thought Leadership

Mr. Mendoza, a non-English speaker, fell at work while cleaning and buffing floors on July 16, 2018. The event was witnessed by a supervisor. The employer acknowledged soft tissue injuries to the neck and back and paid workers’ compensation benefits, including medical expenses. He was involved in a subsequent motor vehicle accident in August 2018 and taken by ambulance to the hospital for neck pain. The claimant later underwent a three-level cervical fusion surgery performed by Dr. Zaslavsky, which the employer denied as reasonable, necessary or causally related to the work accident. In response, Mr. Mendoza filed a Petition to Determine Additional Compensation Due and sought compensability of the surgery and total disability benefits. The employer filed a petition for review that sought to set aside the original agreement on the basis of fraud and to bar the claimant from future filings against the employer. The petitions were consolidated.

At the hearing, evidence was provided that showed Mr. Mendoza had a 20-year history of medical treatment for the cervical spine and that he failed to disclose that history to his employer at the time of hire, to the employer/carrier at the time of his accident, to the defense medical expert doctor and to Dr. Zaslavsky. The Board concluded that the claimant failed to meet his burden to establish compensability of the cervical spine surgery and found the testimony of Dr. Gelman, the employer’s expert, more persuasive than Dr. Zaslavsky’s. Further, the Board determined that the claimant had committed fraud due to his failure to disclose his extensive medical history. The underlying agreement was struck, but because there was a witnessed event and little evidence was before the Board regarding the accepted lumbar spine injury, the claimant was permitted 60 days to file a new petition to attempt to establish compensability of the work accident as it pertained to other issues.

The claimant appealed, contending that there was not substantial evidence to support the Board’s conclusions and that the Board erred in its application of Superior Court Civil Rule 60(b) because it did not establish the reliance or damages prongs necessary to find fraud. The court found there was substantial evidence to deny the petition based on Dr. Gelman’s testimony.

For the fraud finding, the court determined that the Board properly applied Rule 60(b) in this scenario. There was detrimental reliance established because the employer presented evidence that it would not have hired him or accepted the claim if he had been truthful about his prior medical history. Moreover, the Board did consider damages when it specifically referenced a credit attributable to all the past benefits paid. The court went a step further and advised that this set of facts also qualified to re-open the agreement and set it aside on the basis of Rule 60(b)(3) due to Mr. Mendoza’s “misrepresentation and misconduct.” The claimant admitted to dishonesty at the hearing and his misrepresentations were not the result of the language barrier, as they were made in response to both English and Spanish inquiries. The decision of the Board was affirmed.
 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 5, May 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}