IN RE: the Claim of Christina TAKACS (2021)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers’ Compensation Board, filed February 13, 2020, which ruled that claimant did not violate Workers’ Compensation Law § 114–a.

In February 2015, claimant stopped working for the employer as a result of disabling back problems.  The problems were found to be work related and resulted in an award of workers’ compensation benefits at varying rates.  Claimant recorded her efforts to find work within her medical restrictions from 2018 onward, and an attempt to verify the logged job applications could not confirm that she had submitted some of them and revealed that she had submitted others with someone else's resumé attached.  The employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) then argued, as is relevant here, that claimant had made knowing misrepresentations regarding her attachment to the labor market and that she should be disqualified from receiving further benefits pursuant to Workers’ Compensation Law § 114–a.  Following hearings, the Workers’ Compensation Law Judge disagreed.  The Workers’ Compensation Board affirmed, prompting this appeal by the carrier.

We affirm.  “[A] claimant who, for the purpose of obtaining workers’ compensation benefits, or to influence any determination related to payment, ‘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’ ” (Matter of Hughes v. Ferreira Constr. Co., 191 A.D.3d 1053, 1055, 141 N.Y.S.3d 550 [2021], quoting Workers’ Compensation Law § 114–a [1];  see Matter of Calabrese v. Fortini Inc., 179 A.D.3d 1279, 1280, 117 N.Y.S.3d 331 [2020]).  Here, although some of the potential employers had no record of receiving job applications in claimant's name, claimant testified that she submitted every logged job application and provided emails confirming that some of them had been received.  Claimant further testified that she did not deliberately attach someone else's resumé to any of her job applications – applications that were, it should be noted, all in her name – and did not know how that had occurred.  She provided proof pointing to her acknowledged lack of computer savvy as the culprit, however, testifying that the resumé attached to some of her online applications was a template saved in the same location as her actual resumé and documenting that she had failed to sign into her job search website account before submitting other applications on a public computer.  The Board was free to credit this proof that claimant made mistakes in conducting her job search without knowingly misrepresenting any material fact about it and, despite the existence of proof in the record that could support a different result, such constitutes substantial evidence for the determination that she did not violate Workers’ Compensation Law § 114–a (1) (see Matter of Cruz v. Buffalo Bd. of Educ., 138 A.D.3d 1316, 1318, 30 N.Y.S.3d 378 [2016];  Matter of Borgal v. Rochester–Genesee Regional Transp. Auth., 108 A.D.3d 914, 915–916, 970 N.Y.S.2d 105 [2013];  Matter of Dory v. New York State Elec. & Gas Corp., 64 A.D.3d 848, 849, 881 N.Y.S.2d 683 [2009]).

ORDERED that the decision is affirmed, without costs.

Colangelo, J.

Garry, P.J., Lynch, Clark and Pritzker, JJ., concur.