| Matter of Borgal v Rochester-Genesee Regional Transp.Auth. |
| 2013 NY Slip Op 05276 [108 AD3d 914] |
| July 11, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of John Borgal,Respondent, v Rochester-Genesee Regional Transportation Authority,Appellant. Workers' Compensation Board, Respondent. |
—[*1] Lewis & Lewis, Buffalo (Holly L. Schoenborn of counsel), for John Borgal,respondent. Eric T. Schneiderman, Attorney General, New York City (Linda Clarke of counsel),for Workers' Compensation Board, respondent.
Spain, J. Appeal from a decision of the Workers' Compensation Board, filedFebruary 21, 2012, which, among other things, ruled that claimant did not violateWorkers' Compensation Law § 114-a.
In January 2009, claimant suffered work-related injuries to his left shoulder and righthand. He continued working until July 2009, when he underwent surgery to repair a tornrotator cuff in his left shoulder. Workers' compensation benefits were awarded from thedate of surgery forward, on a total temporary disability basis. Subsequently, claimantbegan experiencing increased pain, and an MRI performed in August 2010 revealed aretearing of the rotator cuff.
At a hearing held in June 2010, the self-insured employer disclosed that it had carriedout surveillance on claimant and thereafter raised the issue of whether he had violatedWorkers' Compensation Law § 114-a. Following subsequent hearings, a Workers'Compensation Law [*2]Judge (hereinafter WCLJ) found,among other things, that claimant had not violated Workers' Compensation Law §114-a and compensation benefits were continued. Upon review, the Workers'Compensation Board affirmed and the employer appeals.
We affirm. Pursuant to Workers' Compensation Law § 114-a (1), a claimantwho "knowingly makes a false statement or representation as to a material fact. . . shall be disqualified from receiving any compensation directlyattributable to such false statement or representation." "The Board is the sole arbiter ofwitness credibility" (Matter ofHammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d 1252, 1252 [2009][citations omitted]; see Matterof Martinez v LeFrak City Mgt., 100 AD3d 1110, 1111 [2012]), and itsdetermination of whether a claimant has violated Workers' Compensation Law §114-a will be upheld if it is supported by substantial evidence in the record (seeMatter of Martinez v LeFrak City Mgt., 100 AD3d at 1111; Matter of Siddon v AdvanceEnergy Tech., 98 AD3d 1202, 1202 [2012]; Matter of McKenzie v Revere Copper Prods., 39 AD3d1035, 1036 [2007]), even where there is evidence in the record that would support adifferent result (see Matter ofMonzon v Sam Bernardi Constr., Inc., 60 AD3d 1261, 1263 [2009]; Matterof McKenzie v Revere Copper Prods., 39 AD3d at 1037; Matter of Elmer v MarocchiTrucking Co., Inc., 30 AD3d 792, 794 [2006]).
Here, the employer initially argues that claimant misrepresented a material fact ontwo benefits questionnaires in November 2009 and June 2010 by stating that he did notwork following his July 2009 shoulder surgery. The employer contends that themisrepresentation was evidenced by claimant's testimony and the surveillance videosregarding his renovation of a residential property, which the employer argues constitutedwork. Claimant testified that, for the past eight years, he had been engaged in buyingresidential real estate property, renovating it and then selling it for a profit. The recordreflects that claimant purchased a residential property in November 2009 and, with thehelp of others, he renovated it. Claimant admitted to participating in various activities onthe property, namely, the performance of small tasks such as carrying out small items oftrash, doing touch-up scraping and painting, light carpentry work and installing twolights in the garage. Claimant's testimony indicated that the majority of the renovationwork was completed by family members and hired contractors. The employer'ssurveillance video recordings did not contradict this testimony, primarily showingclaimant undertaking only light errands and tasks not directly related to the renovation.Moreover, the record reflects that claimant still owned the property at the time of thehearing, that his son was living there, that the property was not listed for sale and thatclaimant had not decided whether he would sell the property. While there is evidence thatcould support a different conclusion, we find that the Board's determination thatclaimant's omission of his minimal renovation related activities did not constitute aviolation of Workers' Compensation § 114-a (1) is supported by substantialevidence (see Matter of Engoltzv Stewart's Ice Cream, 91 AD3d 1066, 1067 [2012]; Matter of Hamza v Steinway &Sons, 88 AD3d 1033, 1033-1034 [2011]; compare Matter of Hadzaj v Harvard Cleaning Serv., 77 AD3d1000, 1001-1002 [2010], lv denied 16 NY3d 702 [2011]).
The employer also argues that claimant violated Workers' Compensation Law§ 114-a by misrepresenting the degree of his disability to his physician, asallegedly evidenced by claimant's ability to perform various physical activities. Claimanttestified that he informed his physician that he was performing various householdactivities. His physician, Matthew Landfried, testified that, although he did not recallclaimant informing him about his activities, and his examination notes did not reflect thatclaimant had provided such information, he reported that, generally, he only makesspecific notations of information that is out of the ordinary. Further, Landfried testifiedthat, while claimant would have been restricted regarding [*3]physical activities for the first 12 weeks after his surgery,and there is no evidence that he failed to follow such restrictions during that time period,there were no restrictions on his performance of daily living activities thereafter.Landfried had determined that claimant was totally disabled from performing his jobduties as a bus driver, but not totally disabled from all activities. Similarly, claimant'sphysical therapist opined in September 2009 that claimant was cleared "for all normalhousehold activities that don't require extreme reaching, quick unguarded movement orheavy lifting." In fact, the employer's medical expert concluded—after conductingan independent medical examination of claimant, reviewing his medical records andwatching the surveillance videos—that claimant had not misrepresented himselfregarding his activities and physical capabilities. Finally, Landfried reviewed thesurveillance videos and similarly concluded that claimant's activities, as shown on thevideos, did not change his opinion as to the extent of claimant's disability. Under thesecircumstances, the Board's determination that claimant did not violate Workers'Compensation Law § 114-a is supported by substantial evidence and will not bedisturbed (see Matter of Donatov Aquarian Designs, Inc., 96 AD3d 1302, 1303 [2012]; Matter of Gillan v New York StateDept. of Corrections, 88 AD3d 1035, 1036 [2011]). The employer's remainingarguments have been examined and found to be without merit or rendered academic inlight of our decision.
Rose, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed,without costs.