| Matter of Dory v New York State Elec. & Gas Corp. |
| 2009 NY Slip Op 05669 [64 AD3d 848] |
| July 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of George M. Dory, Respondent, v New York StateElectric & Gas Corporation et al., Appellants, and Special Disability Fund, Respondent.Workers' Compensation Board, Respondent. |
—[*1] Mary Jo Long, Afton, for George M. Dory, respondent. Andrew M. Cuomo, Attorney General, New York City (Steven Segall of counsel), forWorkers' Compensation Board, respondent.
McCarthy, J. Appeal from a decision of the Workers' Compensation Board, filed March 19,2008, which ruled that claimant did not violate Workers' Compensation Law § 114-a.[*2]
Claimant received workers' compensation benefits for apermanent partial disability apportioned between three work-related back injuries. In June 2006,an investigator hired by the employer's workers' compensation carrier observed claimant using asquat press machine. Claimant testified in November 2006 that he did not do squat presses andhis physicians testified that he should not do so. The employer and carrier thereafter sought todisqualify claimant from receiving benefits, arguing that his testimony represented a knowinglyfalse statement or misrepresentation of a material fact as set out in Workers' Compensation Law§ 114-a. Following a hearing, a Workers' Compensation Law Judge found, among otherthings, that the employer and carrier had failed to prove that claimant made this statement. TheWorkers' Compensation Board affirmed in relevant part and the employer and carrier nowappeal.
We affirm. The Board's determination as to whether a claimant violated Workers'Compensation Law § 114-a will be upheld if substantial evidence supports it (see Matter of Monzon v Sam BernardiConstr., Inc., 60 AD3d 1261, 1262-1263 [2009]; Matter of Monroe v Town of Chester, 42 AD3d 862, 864 [2007]).Here, claimant was specifically asked in November 2006 if he "engaged[d] in squat pressing" asa follow-up question inquiring whether he lifted weights. He was not asked if he had ever used asquat press machine. In explaining his negative answer, claimant admitted that he had used themachine in question twice, at most, but did not know its actual name. Moreover, he stated thathis conception of a squat press involved the use of free weights and that he never equated his twouses of this machine with either lifting weights generally or a squat press specifically. The Boardwas free to credit this testimony, and we view it as substantial evidence that claimant did notknowingly make a false statement or misrepresentation of a material fact (see Matter ofMonroe v Town of Chester, 42 AD3d at 864; Matter of McKenzie v Revere Copper Prods., 39 AD3d 1035, 1037[2007]).
Peters, J.P., Rose, Lahtinen and Stein, JJ., concur. Ordered that the decision is affirmed,without costs.