IN RE: the Claim of Richard PETIT (2006)

Appeal from a decision of the Workers' Compensation Board, filed December 13, 2004, which ruled that claimant did not violate Workers' Compensation Law § 114-a.

This case presents the issue of whether claimant violated Workers' Compensation Law § 114-a by knowingly misrepresenting a material fact.   Following a hearing, a Workers' Compensation Law Judge found that there had been no misrepresentation.   The Workers' Compensation Board affirmed, prompting this appeal by the employer and the State Insurance Fund.

The Board's determination as to whether there was a violation of Workers' Compensation Law § 114-a will be upheld so long as it is supported by substantial evidence in the record (see Matter of Elmer v. Marocchi Trucking Co., 30 A.D.3d 792, 817 N.Y.S.2d 697 [2006] [decided herewith];  Matter of Lopresti v. Washington Mills, 23 A.D.3d 725, 726, 803 N.Y.S.2d 317 [2005];  Matter of Amster v. New York City Sheriff's Off., 17 A.D.3d 789, 790, 792 N.Y.S.2d 718 [2005] ).   Claimant's sworn testimony concerning his condition and resulting limitations was consistent with video surveillance tapes and testimony by investigators, thus constituting substantial evidence.

The employer submitted surveillance evidence showing claimant sporadically performing various activities, including walking without a cane, mowing his lawn, pushing a shopping cart and placing his wheelchair and other materials into his truck.   Based on this evidence, the independent medical examiner, who had initially opined that claimant was totally disabled with 80% of such disability attributable to his work injuries, concluded that claimant had provided false information, exaggerated his symptoms and suffered from a mild degree of disability.

Claimant, however, previously testified that, while he generally walks with assistance from either a cane or a walker and uses a wheelchair to get around his house, he does, on occasion, walk short distances on his own as recommended by his treating orthopedist.   He explained that he typically tries to avoid taking his wheelchair out of the house because it hurts his shoulder when he lifts it into the back of his truck.   Claimant also testified that he takes his wife shopping each week and sometimes uses a shopping cart for support instead of his cane or walker.   He further testified that he was able to mow his lawn with a self-propelled mower since he uses it to stabilize himself.

While acknowledging that the videotaped surveillance, of which claimant was unaware, shows him both using and not using the various assistive devices, we do not conclude that he testified falsely with regard to the activities depicted on the videotapes (cf. Matter of Passari v. New York City Hous. Auth., 13 A.D.3d 853, 786 N.Y.S.2d 254 [2004] ).   As such, we discern no basis to disturb the Board's decision that claimant did not knowingly misrepresent a material fact (see Matter of Feisthamel v. Marcy Correctional Facility, 26 A.D.3d 554, 555, 809 N.Y.S.2d 259 [2006] ).

The remaining contentions raised by the employer and the State Insurance Fund have been examined and found to be without merit.

ORDERED that the decision is affirmed, with costs to claimant.

PETERS, J.

MERCURE, J.P., CREW III, ROSE and LAHTINEN, JJ., concur.