| Matter of Martinez v LeFrak City Mgt. |
| 2012 NY Slip Op 07339 [100 AD3d 1110] |
| November 8, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Edelmiro Martinez, Appellant, vLeFrak City Management et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Michael Miliano, State Insurance Fund, New York City (Alison Kent-Friedman of counsel),for LeFrak City Management and another, respondents.
McCarthy, J. Appeal from a decision of the Workers' Compensation Board, filed June 16,2010, which ruled that claimant violated Workers' Compensation Law § 114-a anddisqualified him from receiving additional workers' compensation benefits.
Claimant worked for the employer as a porter while at the same time separately pursuing acareer as a professional boxer. On July 30, 2004, claimant took part in a featherweight boxingmatch at the Mohegan Sun Casino that ended in his disqualification. Casino records and hospitalreports show that, in the course of that match, claimant sustained, among other things, an injuryto his left bicep. An August 4, 2004 MRI showed a complete tear of claimant's left bicep and hewas informed on August 9, 2004 that surgery would be necessary to repair it. Nonetheless,claimant returned to his duties as a porter and, on August 18, 2004, reported to the employer thathe injured his left arm while moving garbage bags. Claimant was taken to the hospitalimmediately and, on August 20, 2004, he underwent surgery to have his torn left bicep repaired.Citing the August 18, 2004 injury, claimant then filed for workers' compensation benefits,whereupon it was ultimately determined that he has a 30% schedule loss of use of his left arm.Prior to finalization of this award, however, the employer's workers' [*2]compensation carrier raised the issue of whether claimant filed afalse claim for benefits and/or misrepresented the extent of his injury by failing to disclose theprior July 30, 2004 injury to any of the medical providers who examined him following theclaimed August 18, 2004 injury. The Workers' Compensation Board concluded that, while therecord sufficiently showed that claimant sustained a work-related accident on August 18, 2004,the proof also supported a finding of a Workers' Compensation Law § 114-a violation"based on the claimant's denial of a prior left arm injury to the multiple medical providers andconsultants." Consequently, it was determined that, while claimant would still be entitled tomedical benefits, he was disqualified from receiving a schedule loss of use award. Claimant nowappeals.
We affirm. "Pursuant to Workers' Compensation Law § 114-a (1), a person may bedisqualified from receiving workers' compensation benefits when he or she knowingly [makes] afalse statement or representation as to a material fact for the purpose of obtaining such benefits"(Matter of Donato v Aquarian Designs,Inc., 96 AD3d 1302, 1303 [2012] [internal quotation marks and citations omitted]).Where, as here, the Board's finding of a statutory violation is supported by substantial evidence,it will not be disturbed (see Matter ofPoli v Taconic Correctional Facility, 83 AD3d 1339, 1339-1340 [2011]). Whileclaimant maintains that his left arm was not injured in the July 2004 fight, this created acredibility issue for the Board, "the sole arbiter of witness credibility" (Matter of Michaels v Towne Ford, 9AD3d 733, 734 [2004]). In any event, the record not only contains proof to the contrary,there is also evidence that claimant's physician called claimant prior to the August 18, 2004accident and told him that his left bicep was torn and required surgery. Under thesecircumstances, the Board's conclusion that claimant misrepresented his status when he failed tothereafter report the prior injury in his medical history is supported in the record and must beaffirmed, regardless of the existence of any proof that might support a contrary result (see Matter of Amster v New York CitySheriff's Off., 17 AD3d 789, 790 [2005]).
Peters, P.J., Rose, Spain and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.