State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: August 7, 2014 517126
________________________________
In the Matter of the Claim of
MONICA SCHUSS,
Appellant,
v
DELTA AIRLINES, INC., et al., MEMORANDUM AND ORDER
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: June 5, 2014
Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.
__________
Monica Schuss, Ozone Park, appellant pro se.
Vecchione, Vecchione & Connors, Garden City Park (Heather
N. Babits of counsel), for Delta Airlines, Inc. and another,
respondents.
__________
Lahtinen, J.P.
Appeal from a decision of the Workers' Compensation Board,
filed October 9, 2012, which ruled that claimant violated
Workers' Compensation Law § 114-a and disqualified her from
receiving further workers' compensation benefits.
Claimant sustained a work-related injury to her left hand
in February 2010 and was awarded workers' compensation benefits.
At a hearing in May 2011, the employer's workers' compensation
carrier raised the issue of whether claimant had violated
Workers' Compensation Law § 114-a, based upon alleged
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misrepresentations regarding her work activity while receiving
benefits. A Workers' Compensation Law Judge (hereinafter WCLJ)
thereafter found that claimant had violated Workers' Compensation
Law § 114-a and disqualified her from receiving future benefit
payments. The Workers' Compensation Board affirmed the WCLJ's
decision and claimant appeals.
We affirm. Pursuant to Workers' Compensation Law § 114-a
(1), a claimant who "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." "A determination by the
Board that a claimant violated Workers' Compensation Law § 114-a
will not be disturbed if supported by substantial evidence"
(Matter of Poli v Taconic Correctional Facility, 83 AD3d 1339,
1339-1340 [2011] [citation omitted]). Here, claimant testified
on May 11, 2011 that she had not worked for anyone in any
capacity during the time following her 2010 injury. The carrier
subsequently presented surveillance videos and a written report
prepared by a private investigator.1 The written report and
videos taken on May 2, 2011 through May 4, 2011 reflect claimant
leaving her home and driving to a chiropractor's office and
remaining there for several hours. Claimant is also shown
wearing a uniform bearing that office's logo. Further, claimant
was filmed leaving the office with another person, running an
errand with that person in that person's automobile, and then
returning to the office. In our view, the surveillance videos
and report constitute substantial evidence supporting the Board's
determination that claimant was working after her 2010 injury and
concealed her employment for the purposes of receiving benefits.
Claimant also argues that she was deprived of due process
in the manner that the hearings were conducted. Specifically,
claimant contends that the WCLJ erred in considering the
surveillance videos because she was not provided a copy of them
1
Contrary to claimant's contention, the record establishes
that she was made aware that the carrier had taken surveillance
videos of her prior to her testimony (see Matter of Morelli v
Tops Mkts., 107 AD3d 1231, 1232 [2013]).
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prior to their viewing. Even assuming that she did not receive a
copy of the videos prior to their viewing, she admittedly had
previously received a copy of the investigator's written report.
That report contains still photographs taken from the videos and
provides a thorough time line and full descriptive narrative of
claimant's activities depicted in the videos and filmed by the
investigator, who testified and was cross-examined by claimant.
Accordingly, we find that claimant was aware of the evidence
contained in the videos prior to the hearing and we find no error
in the WCLJ's consideration of that evidence (see Workers'
Compensation Law § 118).
We also reject claimant's contention that she was denied
due process by the WCLJ's rejection of her request to present
testimony in rebuttal to the surveillance evidence. The record
reflects that claimant did not request the opportunity to offer
rebuttal testimony until after the close of proof and both
parties had given summations. Under these circumstances, the
WCLJ's denial of her request was not an abuse of discretion and
did not constitute a violation of claimant's due process rights
(see Workers' Compensation Law § 118; see generally Employer:
Kittantinny Canoe Corp., 2006 WL 1696360, *3, 2006 NY Wrk Comp
LEXIS 04836, *6 [WCB No. 9040 4794, June 2, 2006]; Employer: Big
V Supermarkets, 2006 WL 1221546, *2, 2006 NY Wrk Comp LEXIS
03716, *5 [WCB Nos. 5920 6605, 0883 2405, Apr. 27, 2006]).
Claimant's remaining claims have been considered and found to be
without merit.
McCarthy, Rose, Lynch and Devine, JJ., concur.
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ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court