| Matter of Denman v Cobbler's Rest. |
| 2013 NY Slip Op 03516 [106 AD3d 1289] |
| May 16, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Linda M. Denman, NowKnown as Linda Muthig, Appellant, v Cobbler's Restaurant et al., Respondents. Workers'Compensation Board, Respondent. |
—[*1] Michael Miliano, State Insurance Fund, Endicott (Mark A. Kenyon of counsel), forCobbler's Restaurant and another, respondents. Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer ofcounsel), for Special Disability Fund, respondent.
Lahtinen, J. Appeal from a decision of the Workers' Compensation Board, filedDecember 1, 2011, which ruled that claimant violated Workers' Compensation Law§ 114-a and imposed a penalty.
Claimant sustained a work-related injury in 2003, which resulted in an award ofworkers' compensation benefits of $359.41 per week based on a total disability rate. InJuly 2011, after hearing testimony and viewing surveillance videos taken of claimant onMarch 17 and 18, and April 1, 2011, a Workers' Compensation Law Judge (hereinafterWCLJ) concluded that, although claimant was totally disabled, she nevertheless hadmisrepresented her disabilities in an effort to influence determinations made inconnection with her claim. The WCLJ thus found that claimant had violated Workers'Compensation Law § 114-a and imposed a discretionary penalty of reducing herweekly benefits by $89.85 to $269.56 for a period of one [*2]year beginning June 15, 2011. The Workers' CompensationBoard affirmed the WCLJ's determination, and claimant now appeals.
While there is a mandatory penalty under Workers' Compensation Law §114-a where compensation directly attributable to a false statement or representation isreceived, a discretionary penalty may be imposed " 'regardless of whether the falsestatement or representation enabled the claimant to receive compensation' " (Matter of Michaels v TowneFord, 9 AD3d 733, 734 [2004], quoting Matter of Losurdo v Asbestos Free, 1 NY3d 258, 266[2003]). "A determination by the Board that a claimant violated Workers' CompensationLaw § 114-a will not be disturbed if supported by substantial evidence" (Matter of Poli v TaconicCorrectional Facility, 83 AD3d 1339, 1339-1340 [2011] [citation omitted]; see Matter of Martinez v LeFrakCity Mgt., 100 AD3d 1110, 1111 [2012]). "The Board is the sole arbiter ofwitness credibility" (Matter ofHammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d 1252, 1252 [2009][citations omitted]; see Matterof Hadzaj v Harvard Cleaning Serv., 77 AD3d 1000, 1001 [2010], lvdenied 16 NY3d 702 [2011]).
Claimant testified that she uses a walker some of the time (such as when she has "along day"), otherwise uses her cane, "always ha[s] a limp," is not supposed to drive whentaking her medications and, at the relevant time, was basically restricted from anyactivity. Video evidence revealed that when claimant was at a Board location for ahearing (March 17, 2011) or a medical facility for an independent medical examination(April 1, 2011), she walked laboriously and very slowly, had an obvious limp, and usedher walker or cane. However, later those same days, she was recorded moving notablyfaster with little discernible limp while in parking lots of stores. She was recordeddriving and was also recorded on another occasion (March 18, 2011) standing outsideher vehicle moving around without assistance while talking on a cell phone and smoking.She was further recorded—albeit with her cane—walking without apparentdifficulty down steps in a store as she carried a bag. Her explanations regarding herchanging mobility were not credited. The physician who conducted the independentmedical examination on April 1, 2011 stated that, after viewing the videos, he wouldchange his opinion from total disability to a moderate, partial disability. Although theWCLJ declined to change claimant's disability, the WCLJ did decide that a discretionarypenalty was warranted. The Board affirmed, concluding that the reasonable inferencesfrom claimant's testimony and the surveillance videos established that claimant hadattempted to misrepresent her condition to influence the determination regardingbenefits. The Board's decision is supported by substantial evidence in the record and,accordingly, we affirm.
Rose, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed,without costs.