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An injured construction worker who volunteered for duty at Ground Zero and found the flag that once flew atop one of the World Trade Center towers has won reconsideration of a workers’ compensation decision disqualifying him for benefits. The Appellate Division, 3rd Department, agreed with the Workers’ Compensation Board that Michael McCormack was dishonest when he claimed that he had not worked and could not work following a May 2001 accident. Nevertheless, the evidence clearly showed that McCormack spent at least two days volunteering at Ground Zero after the Sept. 11, 2001, terrorist attacks and found the flag that has since been displayed at countless memorial services and sporting events. But in a decision written by Justice D. Bruce Crew III, the unanimous panel said the Workers’ Compensation Board failed to properly document its decision to disqualify McCormack from receiving benefits because he lied at his hearing. It said the board, in imposing a penalty on McCormack, failed to establish in the record whether the punishment was mandatory or discretionary. Such a distinction must be drawn under the Court of Appeals’ 2003 ruling in Matter of Losurdo v. Asbestos Free, 1 NY3d 805. The panel reversed and remitted for the board’s decision. McCormack, who worked for Eastport Manor Construction Co., was hurt in May 2001 when he was thrown from a vehicle and injured his head, neck and back. At a hearing in April 2002, he was asked if he had worked in “any capacity” since the accident. McCormack said he had not. He was then asked whether he had performed any kind of work, including volunteer work. Again, he said he had not. In a follow-up question, the workers’ compensation law judge asked McCormack if he had “[s]imply stayed at home” since the accident. McCormack insisted that he had and was awarded benefits. Subsequently, the workers’ compensation insurance carrier conducted a video surveillance and sought rescission of the award on the grounds that McCormack had testified falsely regarding his work activities and had exaggerated his injuries. At a second hearing, McCormack recalled for the first time that he had volunteered to help after the Sept. 11 terrorist attacks. Ultimately, a panel of the Workers’ Compensation Board found that McCormack knowingly lied in order to obtain benefits and disqualified him from the program. The 3rd Department had “no quarrel” with the Workers’ Compensation Board’s finding that McCormack offered false testimony, rejecting the laborer’s claim that he had forgotten about his post-9/11 service. “We � agree with the Board panel that given the admittedly laudable nature of the work that claimant performed at ground zero in the aftermath of the terrorist attacks, it is highly unlikely that this event simply slipped his mind,” Justice Crew wrote. INCOMPLETE RECORD But Crew said the Court of Appeals in Losurdo made clear that in imposing a penalty under Workers’ Compensation Law �114-a, the record must reflect whether a mandatory or discretionary penalty is being imposed and must establish a link between the false testimony and the compensation received. Here, Crew said, “it is unclear whether the penalty imposed was mandatory or discretionary.” “Moreover, regardless of the basis for the imposition of the penalty, the required elaboration demonstrating either the ‘link’ between the false statement and the forfeited compensation or the rationale for the imposition of a discretionary penalty is absent,” Crew wrote. Also on the panel were Justices Karen K. Peters, Carl J. Mugglin, Robert S. Rose and John A. Lahtinen. David Sanua of Brooklyn appeared for McCormack. Patrick M. Conroy of Stewart, Greenblatt, Manning & Baez in Syosset represented Eastport Manor Construction Co.

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