Martinez v. Kingston City Sch. Dist.

• Court: New York Supreme Court Appellate Division
• Writing for the Court: ROSE, J.
• Citation: 34 N.Y.S.3d 242,140 A.D.3d 1421,2016 N.Y. Slip Op. 04756
• Decision Date: 16 June 2016
• Parties: In the Matter of the Claim of Kathy M. MARTINEZ, Appellant, v. KINGSTON CITY SCHOOL DISTRICT et al., Respondents. Workers' Compensation Board, Respondent.

140 A.D.3d 1421
34 N.Y.S.3d 242
2016 N.Y. Slip Op. 04756

In the Matter of the Claim of Kathy M. MARTINEZ, Appellant,
v.
KINGSTON CITY SCHOOL DISTRICT et al., Respondents.

Workers' Compensation Board, Respondent.

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

June 16, 2016.

34 N.Y.S.3d 243

Law Offices of Richard C. Ebeling, Putnam Valley (Richard C. Ebeling of counsel), for appellant.

Ryan Roach & Ryan LLP, Kingston (Jill M. Johnson of counsel), for Kingston City School District and another, respondents.

Before: McCARTHY, J.P., ROSE, DEVINE, CLARK and AARONS, JJ.

ROSE, J.

140 A.D.3d 1422

Appeal from a decision of the Workers' Compensation Board filed August 22, 2014, which ruled that claimant violated Workers' Compensation Law § 114–a and disqualified her from receiving further workers' compensation benefits.

As a result of a January 2005 work-related accident, claimant sustained compensable injuries to her left ankle and lower back and was awarded wage replacement benefits. Following claimant's October 2009 arrest for insurance fraud, and based upon responses provided by claimant on a workers' compensation questionnaire denying participation in any work or volunteer activity since her 2005 accident and an investigation and a May 23, 2008 video surveillance of claimant, the employer sought to suspend her wage replacement benefits. A hearing ensued, after which a Workers' Compensation Law Judge (hereinafter the WCLJ) found that claimant knowingly misrepresented her volunteer activity with CitiVision, a youth-based camp formerly directed by her husband, in order to obtain workers' compensation benefits in violation of Workers' Compensation Law § 114–a (1). The WCLJ, having imposed a mandatory and discretionary penalty, rescinded benefits awarded to claimant from May 23, 2008 to November 9, 2009 and disqualified her from receiving future wage replacement benefits. Upon administrative review, the Workers' Compensation Board adopted and affirmed the decision of the WCLJ, and claimant now appeals.

Workers' Compensation Law § 114–a (1) provides that a claimant will be disqualified from receiving compensation attributable to a false statement or representation of a material fact made for the purpose of obtaining wage replacement benefits. Any compensation already paid to a claimant which is “directly attributable” to a claimant's misrepresentations must be rescinded by the Board (Workers' Compensation Law § 114–a [1 ]; see

34 N.Y.S.3d 244

Matter of Losurdo v. Asbestos Free, 1 N.Y.3d 258, 265, 771 N.Y.S.2d 58, 803 N.E.2d 379 [2003] ; Matter of Church v. Arrow Elec., Inc., 69 A.D.3d 983, 984, 891 N.Y.S.2d 562 [2010] ). The Board also has the discretionary authority to disqualify the claimant from receiving any future wage replacement benefits regardless of “whether or not the claimant is subject to the mandatory penalty” (Matter of Losurdo v. Asbestos Free, 1 N.Y.3d at 265–266, 771 N.Y.S.2d 58, 803 N.E.2d 379 ), even if the claimant has suffered a compensable injury (see id. at 266, 771 N.Y.S.2d 58, 803 N.E.2d 379 ; Matter of Lopresti v.

140 A.D.3d 1423

Washington Mills, 23 A.D.3d 725, 726, 803 N.Y.S.2d 317 [2005] ).¹ In determining whether a claimant violated Workers' Compensation Law § 114–a, we remain mindful that “ ‘[t]he Board is the sole arbiter of witness credibility and its determination that claimant violated Workers' Compensation Law § 114–a will be upheld if supported by substantial evidence’ ” (Matter of ...