| Matter of Siddon v Advance Energy Tech. |
| 2012 NY Slip Op 06339 [98 AD3d 1202] |
| September 27, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Kimberly A. Siddon, Appellant, vAdvance Energy Technologies et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Stockton, Barker & Mead, LLP, Albany (John B. Paniccia of counsel), for Advance EnergyTechnologies and another, respondents.
Stein, J. Appeal from an amended decision of the Workers' Compensation Board, filed July27, 2011, which ruled that claimant violated Workers' Compensation Law § 114-a anddisqualified her from receiving future wage replacement benefits.
In November 2006, claimant injured her back at work and applied for workers' compensationbenefits. After claimant testified that she had never been treated by a physician for any back painor injuries and had never missed any work due to back pain prior to her 2006 injury, theemployer and its workers' compensation carrier raised an issue of fraud and challenged claimant'sentitlement to benefits with evidence of prior back injuries and medical treatment. A Workers'Compensation Law Judge, although admittedly troubled by claimant's testimony, awarded herbenefits. On review, the Workers' Compensation Board reversed, concluding that claimant hadviolated Workers' Compensation Law § 114-a by failing to reveal her prior back injuriesand, in an amended decision, assessed the mandatory penalty of forfeiture of benefits attributableto her misrepresentations and disqualified her from receiving future benefits. [*2]Claimant now appeals.[FN*]
We affirm. "The Board's determination as to whether a claimant has made a materialmisrepresentation in violation of Workers' Compensation Law § 114-a will not bedisturbed if supported by substantial evidence" (Matter of Hamza v Steinway & Sons, 88 AD3d 1033, 1033 [2011][citations omitted]; see Matter of Gillanv New York State Dept. of Corrections, 88 AD3d 1035, 1036 [2011]). Here, althoughclaimant initially testified that she had never injured her back, sought treatment for back pain ormissed any time from work due to back pain prior to her 2006 injury, her medical records reflectseveral complaints of back pain and treatment for back injuries between 1993 and 2006, resultingin numerous missed days from work. Claimant's later testimony that she did not recall theinjuries or the missed time from work when she initially testified created a credibility issue forthe Board's resolution (see Matter ofPoli v Taconic Correctional Facility, 83 AD3d 1339, 1339-1340 [2011]; Matter ofGillan v New York State Dept. of Corrections, 88 AD3d at 1036). Accordingly, we concludethat the Board's decision that claimant, by failing to disclose her history of back injuries andtreatment, made a material misrepresentation in violation of Workers' Compensation Law§ 114-a is supported by substantial evidence and it will not be disturbed (see Matter ofPoli v Taconic Correctional Facility, 83 AD3d at 1340). Further, the Board sufficiently setforth its reasons for permanently disqualifying claimant from receiving future benefits (seeMatter of Poli v Taconic Correctional Facility, 83 AD3d at 1340; Matter of Jacob v New York City Tr.Auth., 26 AD3d 631, 632 [2006]).
Lahtinen, J.P., Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the amendeddecision is affirmed, without costs.
Footnote *: We note that claimant's pro senotice of appeal refers to an incorrect date of filing of the Board's amended decision. Inasmuch asthere has been no claim of prejudice, we will disregard the error and address the merits ofclaimant's appeal (see CPLR 5520 [c]).