Claim of Gropper v. GPA Mechanical
In the Matter of the Claim of Leonard Gropper v. GPA Mechanical, Workers' Compensation Board
Full Opinion (html_with_citations)
Appeal from a decision of the Workersâ Compensation Board, filed March 11, 2005, which, inter alia, ruled that claimant violated Workersâ Compensation Law § 114-a and disqualified him from receiving wage replacement benefits.
Claimant worked for many years as a steam fitter and claimed that he had been exposed to asbestos during that time. He was diagnosed with asbestos-related pleural disease in 1998 and further diagnosed on November 30, 1999 with, among other afflictions, pulmonary asbestosis. In December 1999 and January 2000, claimant filed for workersâ compensation benefits identifying his employer as GPA Mechanical, an entity of which he was the only officer and sole shareholder. Following a hearing, a Workersâ Compensation Law Judge disallowed the claim on the basis that, as an executive officer, he had intentionally excluded himself from coverage under the terms of his companyâs workersâ compensation policy. Thereafter, claimant submitted an application review asserting that he had been added as an insured under the policy effective November 19, 1999.
Upon claimantâs appeal, the Workersâ Compensation Board concluded that further development of the record was necessary. During a March 2004 hearing, the workersâ compensation carrier conceded that claimant had been added to the policy effective November 19, 1999. A Workersâ Compensation Law Judge determined occupational disease, notice and causal relationship for asbestos related pleural disease and concluded that claimantâs, date of disablement was November 30, 1999. As a
We begin by observing that âWorkersâ Compensation Law § 114-a authorizes the Board to disqualify a claimant from receiving future wage replacement benefits if it finds that the claimant knowingly made a false statement or misrepresented a material fact in order to obtain workersâ compensation benefits or to influence any determination regarding such benefitsâ (Matter of Johnson v New York State Dept. of Transp., 305 AD2d 927, 927 [2003] [citation omitted]). The Boardâs determination regarding the applicability of that provision will be upheld if it is supported by substantial evidence in the record (see Matter of Henry v Bass-Masci, 32 AD3d 635, 636 [2006]; Matter of Petit v Syracuse Hous. Auth., 30 AD3d 797, 798 [2006]). Notably â[t]he Board is vested with the discretion to weigh conflicting evidence and evaluate the credibility of witnessesâ (Matter of Papadakis v Volmar Constr., Inc., 17 AD3d 874, 875 [2005]).
Here, claimantâs credibility was clearly undermined by the representations he made on his own claims for workersâ compensation benefits and his correspondence with counsel, which were introduced into evidence before the Board. These documents contradicted his sworn testimony as to his last date of employment. These facts, combined with the timing of his obtaining workersâ compensation coverage, provide substantial evidence for the Boardâs determination, which thus must be affirmed.
Cardona, P.J., Mercure, Spain and Mugglin, JJ., concur. Ordered that the decision is affirmed, without costs.