| Matter of Monzon v Sam Bernardi Constr., Inc. |
| 2009 NY Slip Op 02282 [60 AD3d 1261] |
| March 26, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Humberto Monzon, Respondent, vSam Bernardi Construction, Inc., Appellant. Workers' Compensation Board,Respondent. |
—[*1] Polsky, Shouldice & Rosen, P.C., Rockville Centre (Les D. Jarmol of counsel), forHumberto Monzon, respondent. Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), forWorkers' Compensation Board, respondent.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed December 12,2007, which ruled that claimant did not violate Workers' Compensation Law § 114-a.
Claimant injured his foot in January 2004 when he fell at work. On February 4, 2005, at ahearing before a Workers' Compensation Law Judge (hereinafter WCLJ), claimant testified thathe had been unable to work since the accident. The employer then requested an adjournment sothat it could present a surveillance videotape which allegedly would show that claimant had, infact, worked since his accident. The WCLJ granted an adjournment and continued the paymentof benefits to claimant. The employer appealed, asking that further payments be withheldpending its presentation of evidence on the issue of whether claimant had been working. Afterclaimant's counsel advised the Workers' Compensation Board by letter dated February 22, 2005[*2]that claimant had, in fact, returned to work, the Boardrescinded the payments made following the February 2005 hearing pending further developmentof the record on the issue. In accordance with its established policy regarding surveillancevideotapes, the Board also precluded the employer from offering its videotape and relatedmaterials at the adjourned hearing because it had not informed claimant of their existence beforehis testimony at the February hearing.[FN*]At the next hearing, there was no further development of the record concerning claimant's returnto work because the employer's counsel failed to appear. Instead, the WCLJ found that claimanthad sustained a compensable 30% loss of use of his foot. The employer then sought review bythe Board, asserting that claimant should be disqualified from receiving any compensationbecause he had made material misrepresentations in violation of Workers' Compensation Law§ 114-a. When the Board found no violation of that statute and affirmed the WCLJ'sdecision, this appeal ensued.
As for the preclusion issue, the Board has adopted a rule requiring employers to disclose theexistence of any surveillance materials in their possession prior to taking a claimant's testimony(see Waldbaums Supermarket, 1997 WL 534515, *1 [Workers' Compensation Bd, Aug.6, 1997]), and we have recognized its authority to do so (see Matter of Reimers v American Axle Mfg., 2 AD3d 1246, 1247[2003]; Matter of De Marco v Millbrook Equestrian Ctr., 287 AD2d 916, 917 [2001]).Further, we note that there is no evidence in the record that the employer was denied anopportunity to cross-examine claimant as to when he returned to work or regarding any othermatter which claimant allegedly misrepresented.
Nor are we persuaded that claimant's alleged misrepresentations should have disqualifiedhim from wage benefits under Workers' Compensation Law § 114-a. That section providesfor forfeiture of benefits and imposition of civil penalties when a claimant makes falsestatements or representations regarding material facts "for the purpose of obtaining [benefits]"(Workers' Compensation Law § 114-a [1]). Here, the record supports the Board'sconclusion that the inconsistencies among claimant's various accounts of how his accidentoccurred, and his statements recorded in his medical records regarding his return to work, couldbe explained by variations in the translation of claimant's statements from Spanish to English. Inaddition, the Board reasonably found that the statements in the medical records made afterclaimant's counsel had already informed the Board that claimant had resumed working were notmade for the purpose of obtaining benefits. Moreover, as the employer never established theactual date of claimant's return to work by cross-examining him or through another witness, theBoard's assumption that he had returned to work in February 2005 was not shown to beincorrect. Thus, there is substantial evidence supporting the Board's decision not to find aviolation of Workers' Compensation Law § 114-a, and we will not disturb it despite theexistence of evidence that would support a contrary result (see Matter of Henry v Bass-Masci, 32 AD3d 635, 636 [2006];Matter of Fighera v New York City Dept. of Envtl. Protection, 303 AD2d 861, 862-863[2003], lv denied 100 NY2d 514 [2003]; Matter of Tottey v Varvayanis, 307AD2d 652, 655 [2003], lv denied 1 NY3d 501 [2003]; Matter of Hughes v IndianVal. Indus., 290 AD2d 871, 872 [2002]). The employer's remaining contentions have beenexamined and determined to be either unpreserved or without merit.[*3]
Mercure, J.P., Lahtinen, Kane and Malone Jr., JJ.,concur. Ordered that the decision is affirmed, without costs.
Footnote *: We later dismissed theemployer's appeal from that preclusion because it was an interlocutory decision (47 AD3d 977,978 [2008]).