| Matter of Hamza v Steinway & Sons |
| 2011 NY Slip Op 06957 [88 AD3d 1033] |
| October 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Esed Hamza,Respondent, v Steinway & Sons et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Eric T. Schneiderman, 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 May 6, 2009,which, among other things, ruled that claimant did not violate Workers' Compensation Law§ 114-a.
Claimant injured his back while working for the employer in 2001 and was awarded workers'compensation benefits based upon his disability due to that injury and associated depression. In2004, a private investigator retained by the employer's workers' compensation carrier recordedclaimant performing snow removal outside the apartment building in which he resided and, as aresult, the carrier's medical consultants changed their opinions regarding claimant's disabilitystatus. Following a hearing at which claimant, his treating physicians, the carrier's medicalconsultants and private investigators for both parties testified, a Workers' Compensation LawJudge found that claimant did not violate Workers' Compensation Law § 114-a and that heis permanently partially disabled as a result of his work-related injuries. Upon review, theWorkers' Compensation Board upheld the determination and the employer and carrier nowappeal.[*2]
We affirm. The Board's determination as to whether aclaimant has made a material misrepresentation in violation of Workers' Compensation Law§ 114-a will not be disturbed if supported by substantial evidence (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]). Claimant acknowledged that he spread ice melt and shoveled for shortperiods of time on occasion to assist his wife in her responsibilities as superintendent of thebuilding in which they reside. Claimant further testified that prior to his work-related injury, heassisted his wife to a greater degree than he is now able. Claimant's treating physicians testifiedthat spreading ice melt and shoveling for a brief period were not inconsistent with claimant'smedical limitations and did not affect their opinion as to his degree of disability. Although thecarrier's medical consultants offered conflicting opinions, credibility determinations andresolution of conflicting medical evidence are issues that rest within the exclusive province of theBoard, and it was free to credit the testimony of claimant and his treating physicians over that ofthe carrier's witnesses (see Matter ofTurner v Jaquith Indus., Inc., 73 AD3d 1405, 1406 [2010]; Matter of Dory v NewYork State Elec. & Gas Corp., 64 AD3d at 849; Matter of Monroe v Town of Chester, 42 AD3d 862, 864-865[2007]).
Peters, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.