IN RE: the Claim of Sharon HAMMES

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Sharon HAMMES, Appellant, v. SUNRISE PSYCHIATRIC CLINIC, INC., et al., Respondents. Workers' Compensation Board, Respondent.

Decided: October 29, 2009

Before:  ROSE, J.P., KANE, STEIN, McCARTHY and GARRY, JJ. Alan W. Clark & Associates, L.L.C., Levittown (Patrick M. Quinn of counsel), for appellant. Gregory J. Allen, State Insurance Fund, Melville (Alison Kent-Friedman of counsel), for Sunrise Psychiatric Clinic, Inc. and another, respondents.

Appeal from a decision of the Workers' Compensation Board, filed July 20, 2007, which ruled that claimant violated Workers' Compensation Law § 114-a and disqualified her from receiving wage replacement benefits.

Claimant received workers' compensation benefits for a permanent partial disability.   At a hearing on the issue of whether she had fraudulently misrepresented the extent of her injuries in violation of Workers' Compensation Law § 114-a, the workers' compensation carrier presented the testimony of its investigator and video surveillance evidence of claimant's work activities.   Claimant denied that she was employed and argued that she was merely helping out a friend.   Finding that claimant was not credible and had misrepresented the degree of her disability, the Workers' Compensation Board imposed mandatory and discretionary penalties pursuant to Workers' Compensation Law § 114-a.   Claimant now appeals and we affirm.

The Board is the sole arbiter of witness credibility (see Matter of Monroe v. Town of Chester, 42 A.D.3d 862, 864, 840 N.Y.S.2d 642 [2007];  Matter of Michaels v. Ford, 9 A.D.3d 733, 734, 780 N.Y.S.2d 234 [2004] ), and its determination that claimant violated Workers' Compensation Law § 114-a will be upheld if supported by substantial evidence (see Matter of Dory v. New York State Elec. & Gas Corp., 64 A.D.3d 848, 849, 881 N.Y.S.2d 683 [2009];  Matter of Monzon v. Sam Bernardi Constr., Inc., 60 A.D.3d 1261, 1262-1263, 876 N.Y.S.2d 175 [2009] ).   Although claimant represented that she had not engaged in work activity for any employer on a paid or unpaid basis on 11 separate questionnaires filed with the carrier, there was corroborated testimony that she had worked by serving customers at a coffee shop and regularly made candy for sale at a confectionary store.   This evidence, together with claimant's eventual admission that she had worked, but had not believed that limited part-time work was reportable, supports the Board's determination that she gave false testimony under oath and engaged in significant work-related activities while intentionally misrepresenting to the carrier that she was unable to work and had not been working (see Matter of Bottieri v. New York State Dept. of Taxation & Fin., 27 A.D.3d 1035, 1036-1037, 811 N.Y.S.2d 493 [2006];  Matter of Woods v. New York State Thruway Auth., 27 A.D.3d 933, 933, 810 N.Y.S.2d 580 [2006], lv. denied 7 N.Y.3d 716, 826 N.Y.S.2d 182, 859 N.E.2d 922 [2006];  Matter of Michaels v. Ford, 9 A.D.3d at 734, 780 N.Y.S.2d 234 [2004];  Matter of Tomlin v. L & B Contr. Indus., 307 A.D.2d 682, 683, 763 N.Y.S.2d 374 [2003] ).

We also cannot agree with claimant that the mandatory and discretionary penalties which the Board imposed are inappropriate.   Given its determinations that claimant violated Workers' Compensation Law § 114-a and that her continued receipt of compensation was directly attributable to that violation, the Board was required to rescind those benefits (see Matter of Losurdo v. Asbestos Free, 1 N.Y.3d 258, 266-267, 771 N.Y.S.2d 58, 803 N.E.2d 379 [2003];  Matter of Peguero v. Halo's Rest., 24 A.D.3d 986, 987, 805 N.Y.S.2d 196 [2005] ).   In addition, the Board set forth a thorough explanation for the discretionary sanction, and we are unpersuaded that claimant's disqualification was disproportionate to her offenses (see Matter of Losurdo v. Asbestos Free, 1 N.Y.3d at 267, 771 N.Y.S.2d 58, 803 N.E.2d 379;  Matter of Robbins v. Mesivtha Tifereth Jerusalem, 60 A.D.3d 1166, 1168, 874 N.Y.S.2d 638 [2009];  Matter of Retz v. Surpass Chem. Co., Inc., 39 A.D.3d 1037, 1039, 834 N.Y.S.2d 389 [2007];  Matter of Harabedian v. New York Hosp. Med. Ctr., 35 A.D.3d 915, 916, 825 N.Y.S.2d 569 [2006] ).

ORDERED that the decision is affirmed, without costs.

ROSE, J.P.

KANE, STEIN, McCARTHY and GARRY, JJ., concur.

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