| Matter of Hammes v Sunrise Psychiatric Clinic, Inc. |
| 2009 NY Slip Op 07703 [66 AD3d 1252] |
| October 29, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Sharon Hammes,Appellant, v Sunrise Psychiatric Clinic, Inc., et al., Respondents. Workers'Compensation Board, Respondent. |
—[*1] Gregory J. Allen, State Insurance Fund, Melville (Alison Kent-Friedman of counsel), forSunrise Psychiatric Clinic, Inc. and another, respondents.
Rose, J.P. Appeal from a decision of the Workers' Compensation Board, filed July 20, 2007,which ruled that claimant violated Workers' Compensation Law § 114-a and disqualifiedher from receiving wage replacement benefits.
Claimant received workers' compensation benefits for a permanent partial disability. At ahearing on the issue of whether she had fraudulently misrepresented the extent of her injuries inviolation of Workers' Compensation Law § 114-a, the workers' compensation carrierpresented the testimony of its investigator and video surveillance evidence of claimant's workactivities. Claimant denied that she was employed and argued that she was merely helping out afriend. Finding that claimant was not credible and had misrepresented the degree of herdisability, the Workers' Compensation Board imposed mandatory and discretionary penaltiespursuant 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 [*2]Chester, 42 AD3d 862, 864 [2007]; Matter of Michaels v Towne Ford, 9AD3d 733, 734 [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 AD3d 848, 849 [2009]; Matter of Monzon v Sam Bernardi Constr., Inc., 60 AD3d 1261,1262-1263 [2009]). Although claimant represented that she had not engaged in work activity forany employer on a paid or unpaid basis on 11 separate questionnaires filed with the carrier, therewas corroborated testimony that she had worked by serving customers at a coffee shop andregularly made candy for sale at a confectionary store. This evidence, together with claimant'seventual admission that she had worked, but had not believed that limited part-time work wasreportable, supports the Board's determination that she gave false testimony under oath andengaged in significant work-related activities while intentionally misrepresenting to the carrierthat she was unable to work and had not been working (see Matter of Bottieri v New York State Dept. of Taxation & Fin., 27AD3d 1035, 1036-1037 [2006]; Matter of Woods v New York State Thruway Auth., 27 AD3d 933,933 [2006], lv denied 7 NY3d 716 [2006]; Matter of Michaels v Towne Ford, 9AD3d at 734 [2004]; Matter of Tomlin v L & B Contr. Indus., 307 AD2d 682, 683[2003]).
We also cannot agree with claimant that the mandatory and discretionary penalties which theBoard imposed are inappropriate. Given its determinations that claimant violated Workers'Compensation Law § 114-a and that her continued receipt of compensation was directlyattributable to that violation, the Board was required to rescind those benefits (see Matter of Losurdo v AsbestosFree, 1 NY3d 258, 266-267 [2003]; Matter of Peguero v Halo's Rest., 24 AD3d 986, 987 [2005]). Inaddition, the Board set forth a thorough explanation for the discretionary sanction, and we areunpersuaded that claimant's disqualification was disproportionate to her offenses (see Matterof Losurdo v Asbestos Free, 1 NY3d at 267; Matter of Robbins v Mesivtha Tifereth Jerusalem, 60 AD3d 1166,1168 [2009]; Matter of Retz v SurpassChem. Co., Inc., 39 AD3d 1037, 1039 [2007]; Matter of Harabedian v New York Hosp. Med. Ctr., 35 AD3d 915,916 [2006]).
Kane, Stein, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed, withoutcosts.