Roberts v. Eastman Kodak Co.

185 A.D.3d 1124

126 N.Y.S.3d 805

In the Matter of the Claim of Shirley ROBERTS, Claimant,

v.EASTMAN KODAK COMPANY et al., Appellants.

Workers' Compensation Board, Respondent.

529643

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 9, 2020

Decided and Entered: July 2, 2020

Hamberger & Weiss, LLP, Rochester (Kelly A. Ochs of counsel), for appellants.

Letitia James, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.

Before: Lynch, J.P., Devine, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from a decision of the Workers' Compensation Board, filed January 29, 2019, which ruled, among other things, that claimant did not violate Workers' Compensation Law § 114–a.

In 1989, claimant, a building services worker, was injured while pulling bags of garbage from a dumpster. Her subsequent claim for workers' compensation benefits was established for a lumbosacral strain, and she was ultimately classified with a permanent partial disability and received continuing benefits. In November 2017, the self-insured employer and its third-party administrator (hereinafter collectively referred to as the employer) requested a hearing to present evidence of claimant's violation of Workers' Compensation Law § 114–a. At an ensuing hearing on the allegation, the employer produced, among other evidence, video surveillance footage depicting claimant performing religious activity as a church pastor notwithstanding her prior representations that she was not engaged in any volunteer work. At the conclusion of the hearing, a Workers' Compensation Law Judge found insufficient evidence that claimant had violated Workers' Compensation Law § 114–a by making a material misrepresentation to obtain benefits and directed the employer to continue weekly payments. On administrative appeal, the Workers' Compensation Board affirmed, crediting claimant's testimony that she did not consider her church activity to constitute work or volunteer work and that said activity was more akin to spiritual worship than reportable volunteer work for purposes of workers' compensation benefits. The employer appeals.

We affirm. Workers' Compensation Law § 114–a(1) provides that a claimant who, for the purpose of obtaining workers' compensation benefits, or to influence any determination related to payment thereof, "knowingly makes a false statement or representation as to a material fact ... shall be disqualified from receiving any compensation directly attributable to such false statement or representation" (see Matter of Calabrese v. Fortini Inc., 179 A.D.3d 1279, 1280, 117 N.Y.S.3d 331 [2020] ; Matter of Sidiropoulos v. Nassau Intercounty Express, 178 A.D.3d 1266, 1267, 115 N.Y.S.3d 530 [2019] ). "For purposes of Workers' Compensation Law § 114–a(1), a fact is material ‘so long as it is significant or essential to the issue or matter at hand’ " ( Matter of Sidiropoulos v. Nassau Intercounty Express, 178 A.D.3d at 1267, 115 N.Y.S.3d 530, quoting Matter of Losurdo v. Asbestos Free, 1 N.Y.3d 258, 265, 771 N.Y.S.2d 58, 803 N.E.2d 379 [2003] ), and "an omission of material information may constitute a knowing false statement or misrepresentation" ( Matter of Galeano v. International Shoppes, 171 A.D.3d 1416, 1418, 97 N.Y.S.3d 360 [2019] ). "Significantly, the Board is the sole arbiter of witness credibility, and its determination as to whether a claimant violated Workers' Compensation Law § 114–a will not be disturbed if supported by substantial evidence" ( Matter of Eardley v. Unatego Cent. Sch. Dist., 153 A.D.3d 1460, 1460–1461, 60 N.Y.S.3d 601 [2017] [internal quotation marks, brackets and citations omitted]; see Matter of Calabrese v. Fortini Inc., 179 A.D.3d at 1280, 117 N.Y.S.3d 331 ; Matter of Martinez v. Kingston City Sch. Dist., 140 A.D.3d 1421, 1423, 34 N.Y.S.3d 242 [2016] ).

Here, the evidence submitted by the employer at the hearing included, among other things, questionnaires signed by claimant stating that she had not done any work or volunteer work during 2013, 2014, 2015 and 2016 and testimony from a field investigator stating that claimant had responded no when orally asked...