| Matter of Donato v Aquarian Designs, Inc. |
| 2012 NY Slip Op 05210 [96 AD3d 1302] |
| June 28, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of John Donato, Appellant, v AquarianDesigns, Inc., et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Michael Miliano, State Insurance Fund, Albany (Tommasino Salvatore Conte of counsel),for Aquarian Designs, Inc. and another, respondents.
Egan Jr., J. Appeal from a decision of the Workers' Compensation Board, filed May 7, 2010,which ruled that claimant violated Workers' Compensation Law § 114-a and, among otherthings, disqualified him from receiving future wage replacement benefits.
Claimant was self-employed in May 2005 when, while riding his motorcycle during thecourse of his work, he was involved in an accident when a pickup truck turned in front of him.As a result of the accident, claimant suffered established injuries to his ribs, head, neck, back, leftshoulder and left clavicle, including a right orbital fracture, pulmonary contusions, collapsedlungs and a traumatic brain injury, and also was diagnosed with adjustment disorder withdepressed mood and anxiety condition and post-concussive syndrome. Claimant thereafter wasawarded workers' compensation benefits at a total temporary disability rate beginning in May2005 and, beginning in November 2005, received benefits at a partial disability rate. The StateInsurance Fund, as the workers' compensation carrier, controverted claimant's receipt of benefitsand, in September 2008, raised the issue of whether claimant fraudulently misrepresented the[*2]extent of his incapacity in violation of Workers'Compensation Law § 114-a. Ultimately, the Workers' Compensation Board ruled thatclaimant knowingly made false statements for the purpose of receiving benefits and, therefore, allbenefits received subsequent to September 8, 2008 were forfeited. In addition, the Board assesseda discretionary penalty and disqualified claimant from receiving wage replacement benefitsbeginning January 7, 2010. Claimant now appeals.
Pursuant to Workers' Compensation Law § 114-a (1), a person may be disqualifiedfrom receiving workers' compensation benefits when he or she "knowingly [makes] a falsestatement or representation as to a material fact" for the purpose of obtaining such benefits (see Matter of Engoltz v Stewart's IceCream, 91 AD3d 1066, 1067 [2012]; Matter of Hadzaj v Harvard Cleaning Serv., 77 AD3d 1000, 1001[2010], lv denied 16 NY3d 702 [2011]). Here, the Board concluded that claimant was inviolation of the statute by misrepresenting the extent of his physical disabilities and denying thathe had engaged in certain activities. However, because the Board's decision contains a number offactual inaccuracies and mischaracterizations of claimant's testimony, we now reverse.
The Board found that claimant testified on September 8, 2008 that "he can only do lightwork-like activities for short periods of time, up to one hour and a half [and] that he can't liftthings"—an assertion that the Board contends is belied by a surveillance video showingclaimant loading a trailer with stones, cutting wood with a chain saw and piling wood for a"significant" period. Contrary to the Board's assertion, claimant actually testified, "I cannot pickthings up, I cannot move things like I used to" (emphasis added), and he readily admittedthat he tried to do as much physical work as possible per his doctor's orders, which includedusing a chain saw to cut wood used for the furnace that provided heat and hot water to hisproperty. Additionally, the surveillance video reveals that claimant labored to complete thephysical tasks depicted—none of which continuously exceeded 90 minutes—and hisefforts were punctuated by long periods of inactivity. Claimant also is observed frequentlyleaning against or grabbing stationary objects to gain stability. And, to the extent that the Boardcited the work performed by claimant on a piece of rental property that he owns, the recordclearly demonstrates that the property was purchased and the restoration completed prior toclaimant's accident.
Finally, we cannot agree that claimant's response to a question regarding whether he "everloaded large corrugated plastic pipe onto trailers" qualified as a knowingly false statementpursuant to Workers' Compensation Law § 114-a. Although the surveillance video indeedshowed claimant performing such a task, claimant's response, as clarified by a follow-upquestion, simply indicated that he had no memory of the event.[FN*]Even assuming that this equivocal "denial" amounted to a knowingly false statement, we cannotconclude, as the Board did, that such statement was made for the purpose of obtainingbenefits—particularly when claimant readily admitted to engaging in activity that was farmore physically taxing. Under these circumstances, we cannot say that the Board's decision wassupported by substantial evidence in the record as a whole (see Matter of Engoltz v Stewart'sIce Cream, 91 AD3d at [*3]1067; compare Matter of Passari v New YorkCity Hous. Auth., 13 AD3d 853, 855 [2004]). In light of our holding, claimant'sremaining contentions are academic.
Rose, J.P., Spain, Malone Jr. 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 *: We note that letters in the recordfrom medical personnel at the Greene County Mental Health Center who treated and evaluatedclaimant indicate that claimant's thoughts are "disordered, disorganized and tangential" and thathe has a "poor memory."