| Matter of Engoltz v Stewart's Ice Cream |
| 2012 NY Slip Op 00151 [91 AD3d 1066] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Beni Engoltz, Appellant, v Stewart'sIce Cream et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Walsh & Hacker, Albany (Sean F. Nicolette of counsel), for Stewart's Ice Cream and another,respondents.
Malone Jr., J. Appeal from a decision of the Workers' Compensation Board, filed April 29,2010, which ruled that claimant violated Workers' Compensation Law § 114-a and wasdisqualified from receiving additional wage replacement benefits.
Claimant injured his back and head in May 1994 and, as a result, was classified with apermanent partial disability that was 90% work-related and he began receiving lost wagereplacement benefits. In 2008, the self-insured employer's risk management companyinvestigated claimant's activities and an issue arose regarding whether claimant was working.Following a hearing at which the employer raised a Workers' Compensation Law § 114-aissue, a Workers' Compensation Law Judge determined that the employer had not demonstratedthat claimant had knowingly made false statements about employment and continued claimant'saward of benefits. Upon appeal, the Workers' Compensation Board found that claimant'sstatements regarding his interest in and activities on behalf of a sporting goods companyamounted to knowingly false statements and disqualified claimant from receiving benefits.Claimant appeals and we reverse.[*2]
Prior to the hearing, the employer's risk managementcompany sent claimant, who now resides in Israel, a questionnaire that asked if he had been"receiving any earnings," to which he responded in the negative.[FN*]Because he was not asked about such activities, claimant did not report on the questionnaire thathe performed duties, without receiving pay or other monetary benefit, on behalf of variousorganizations that support competitive swimming in Israel, including a corporation that he hadformed with two others in order to legally import swimming gear accessories from the UnitedStates. However, at the ensuing hearing, when he was asked about them, claimant was forthrightabout the activities that he performed in Israel, testified that he received no compensation in anyform as a result of those activities and provided his tax returns as proof. Inasmuch as the record isdevoid of any evidence that claimant actually received any earnings or was otherwisecompensated in any way for his efforts, and considering claimant's complete candor at thehearing regarding his activities, the record does not support a finding that claimant "knowingly[made] a false statement or representation as to a material fact" for the purpose of receivingbenefits (Workers' Compensation Law § 114-a [1]; see generally Matter of Passari v New York City Hous. Auth., 13 AD3d853 [2004]; cf. Matter of Dory vNew York State Elec. & Gas Corp., 64 AD3d 848 [2009]). Instead, the record revealsthat claimant responded honestly to the questions asked of him, both on the questionnaire and atthe hearing.
Mercure, A.P.J., Lahtinen, Spain and Kavanagh, JJ., concur. Ordered that the decision isreversed, with costs, and matter remitted to the Workers' Compensation Board for furtherproceedings not inconsistent with this Court's decision.
Footnote *: It is notable in this case that,instead of asking whether claimant was or had been employed or had returned to work in anycapacity (see e.g. Matter of Bottieri vNew York State Dept. of Taxation & Fin., 27 AD3d 1035 [2006]), the questionnairehere asked only whether claimant had been receiving "earnings," which was specifically definedas "cash, wages, or salary received from self-employment, any employer other than the employerwhere you were injured, commissions or bonuses, cash value for all payments received in anyother method other than cash (such as a building custodian receiving an apartment rent free)."