| Matter of Gillan v New York State Dept. of Corrections |
| 2011 NY Slip Op 06959 [88 AD3d 1035] |
| October 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Dennis Gillan,Respondent, v New York State Department of Corrections et al., Appellants. Workers'Compensation Board, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel), forWorkers' Compensation Board, respondent.
Garry, J. Appeals (1) from a decision of the Workers' Compensation Board, filed November18, 2009, which, among other things, ruled that claimant did not violate Workers' CompensationLaw § 114-a, and (2) from a decision of said Board, filed December 3, 2010, which deniedthe employer's application for full Board review.
In July 2002, claimant, while employed as a correction officer, fell from a collapsingstaircase and sustained injuries to his back, right knee and left wrist. Consequently, he wasawarded workers' compensation benefits for a work-related injury, which was ultimatelydetermined to be a permanent partial disability. The claim was later amended to includeconsequential major depressive disorder. Following the accident, claimant did not return to workas a correction officer and, in 2003, he filed for disability retirement benefits. In 2004, claimantwas examined by an independent medical examiner who confirmed that he had a moderatepartial disability.[*2]
In May 2007, the employer's workers' compensationcarrier, the State Insurance Fund (hereinafter Fund), unilaterally stopped paying compensationbenefits to claimant on the basis that a "fraud referral" concerning claimant had been submittedby the Orange County District Attorney's office. It is undisputed that all criminal chargesstemming from this referral were dismissed. In July 2008, claimant filed a request for action withthe Workers' Compensation Board alleging that the Fund improperly suspended compensationpayments without following proper procedures. At a September 2008 appearance, the Workers'Compensation Law Judge (hereinafter WCLJ), among other things, awarded claimant backbenefits, penalized the Fund for the unilateral suspension and scheduled a hearing on the issue ofwhether claimant had fraudulently misrepresented the extent of his injuries in violation ofWorkers' Compensation Law § 114-a. Following a hearing at which the Fund presentedevidence concerning, among other things, its surveillance of claimant and his alleged huntingactivities, the WCLJ found no violation of Workers' Compensation Law § 114-a. Uponreview of the WCLJ's decision by the Board, the decision was affirmed. The employer'sapplication for full Board review was subsequently denied. The employer and the Fund nowappeal from both determinations.
We affirm. The Board's determination as to whether a claimant violated Workers'Compensation Law § 114-a will not be disturbed if substantial evidence supports it (see Matter of Ridgeway v RGRTARegional Tr. Serv., 68 AD3d 1219, 1220 [2009]; Matter of Dory v New York State Elec. & Gas Corp., 64 AD3d848, 849 [2009]). Here, claimant testified that, due to his physical condition he could nolonger hunt regularly and, since the accident, specifically recalled going hunting on only twooccasions in 2005. He stated that on one of those excursions his son did the actual hunting whilehe supervised,[FN1]and the other time he sat down for a while in the forest but did not shoot anything. Notably,claimant's physician averred that claimant was not restricted from light hunting activity as long ashe remained within the restrictions of his partial disability. In that regard, it is significant that theBoard, which "is the sole arbiter of witness credibility" (Matter of Hammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d1252, 1252 [2009]), credited both claimant's testimony and the extensive medical proof inthe record establishing his partial disability.[FN2]The Board also noted that none of the activities witnessed by the investigators as part of theirsurveillance contradicted either claimant's testimony or the medical proof in the record pertainingto his physical restrictions. Given, among other things, the absence of any discrepancy betweenclaimant's testimony regarding his hunting activities and the medical proof in the record (compare Matter of Robbins v MesivthaTifereth Jerusalem, 60 AD3d 1166, 1167[*3][2009]; Matter of Peguero v Halo's Rest., 24AD3d 986, 987 [2005]), we find no basis to disturb the Board's conclusion that claimant didnot knowingly make a material false statement to obtain benefits (see Matter of Dory v NewYork State Elec. & Gas Corp., 64 AD3d at 849).
We have examined the employer and the Fund's remaining arguments, including theircontention that the Board erred in not finding that claimant voluntarily withdrew from theworkforce and their challenge to the denial of the employer's application for full Board review,and find them to be unpersuasive.
Mercure, J.P., Peters, Stein and Egan Jr., JJ., concur. Ordered that the decisions are affirmed,without costs.
Footnote 1: While on this occasion claimantadmitted telling a Department of Environmental Conservation officer that it was he, not his son,who shot a deer, claimant testified that he did so because his teenaged son "tagged" the deerimproperly and he took responsibility so that his son would not get into trouble.
Footnote 2: Although the WCLJ, at theSeptember 2008 appearance, afforded the Fund the opportunity to have claimant reexamined byan independent medical examiner, the Fund did not do so and instead chose to have the medicalpractitioner review claimant's medical file and videotaped surveillance footage. In the absence ofan actual physical examination, the Board specifically found the resulting report to be of littleweight and declined to credit it.