Claim of Hammes v. Sunrise Psychiatric Clinic, Inc.
Full Opinion (html_with_citations)
Appeal from a decision of the Workersâ Compensation Board, filed July 20, 2007, which ruled that claimant violated Workersâ Compensation Law § 114-a and disqualified her from receiving wage replacement benefits.
Claimant received workersâ compensation benefits for a permanent partial disability. At a hearing on the issue of whether she had fraudulently misrepresented the extent of her injuries in violation of Workersâ Compensation Law § 114-a, the workersâ compensation carrier presented the testimony of its investigator and video surveillance evidence of claimantâs work activities. Claimant denied that she was employed and argued that she was merely helping out a friend. Finding that claimant was not credible and had misrepresented the degree of her disability, the Workersâ Compensation Board imposed mandatory and discretionary penalties pursuant to Workersâ Compensation Law § 114-a. Claimant now appeals and we affirm.
The Board is the sole arbiter of witness credibility (see Matter of Monroe v Town of Chester, 42 AD3d 862, 864 [2007]; Matter of Michaels v Towne Ford, 9 AD3d 733, 734 [2004]), and its determination that claimant violated Workersâ Compensation Law § 114-a will be upheld if supported by substantial evidence (see Matter of Dory v New York State Elec. & Gas Corp., 64 AD3d 848, 849 [2009]; Matter of Monzon v Sam Bernardi Constr., Inc., 60 AD3d 1261, 1262-1263 [2009]). Although claimant repre
We also cannot agree with claimant that the mandatory and discretionary penalties which the Board imposed are inappropriate. Given its determinations that claimant violated Workersâ Compensation Law § 114-a and that her continued receipt of compensation was directly attributable to that violation, the Board was required to rescind those benefits (see Matter of Losurdo v Asbestos Free, 1 NY3d 258, 266-267 [2003]; Matter of Peguero v Haloâs Rest., 24 AD3d 986, 987 [2005]). In addition, the Board set forth a thorough explanation for the discretionary sanction, and we are unpersuaded that claimantâs disqualification was disproportionate to her offenses (see Matter of Losurdo v Asbestos Free, 1 NY3d at 267; Matter of Robbins v Mesivtha Tifereth Jerusalem, 60 AD3d 1166, 1168 [2009]; Matter of Retz v Surpass Chem. Co., Inc., 39 AD3d 1037, 1039 [2007]; Matter of Harabedian v New York Hosp. Med. Ctr., 35 AD3d 915, 916 [2006]).
Kane, Stein, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed, without costs.