State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 3, 2015 518387
________________________________
In the Matter of the Claim of
JOELLEN M. PETRILLO,
Appellant,
v
MEMORANDUM AND ORDER
COMP USA et al.,
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: August 20, 2015
Before: Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ.
__________
Joellen M. Petrillo, Canandaigua, appellant pro se.
Hamberger & Weiss, Rochester (Stephen Wyder Jr. of
counsel), for Comp USA and another, respondents.
__________
Garry, J.
Appeal from a decision of the Workers' Compensation Board,
filed April 11, 2013, which ruled that claimant violated Workers'
Compensation Law § 114-a and disqualified her from receiving
further workers' compensation benefits.
Claimant sustained work-related injuries to her back and
neck in 2005 and a consequential injury to her left knee in 2011.
In 2011, the employer's workers' compensation carrier raised the
issue of a possible non-work-related accident and injury.
Following a hearing, at which claimant's testimony indicated that
she had recently been employed, the carrier alleged that claimant
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had violated Workers' Compensation Law § 114-a by, among other
things, not informing the carrier of her employment. A Workers'
Compensation Law Judge found that claimant had violated Workers'
Compensation Law § 114-a and, based on both mandatory and
discretionary penalties, that she was permanently disqualified
from receiving future wage replacement benefits. The Workers'
Compensation Board affirmed this decision and claimant now
appeals.1
We affirm. "The 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 Hammes v Sunrise Psychiatric
Clinic, Inc., 66 AD3d 1252, 1252 [2009] [citations omitted];
accord Matter of Tangorre v Tech Home Elec., LLC, 124 AD3d 1183,
1184 [2015]). Here, claimant testified at the initial hearing
that she was enrolled in a part-time training position at a
florist during the summer of 2011 that had only lasted a month
and that she was not certain whether she had informed the carrier
of the position. She also testified that, although it was
supposed to be a paid position, she was not paid due to her
refusal to participate in the training program.
The carrier thereafter submitted employment records from
the florist, including payroll information, claimant's
application for employment, tax documents and a signed
acknowledgment that claimant received the florist's employment
handbook. Claimant admitted at the second hearing that she had
been paid $430 for her work and contended that she was owed more
wages. Although she continued to maintain that she was
participating in a vocational position intended to evaluate her
ability to work and not actual employment, this presented a
credibility determination for the Board to resolve. In our view,
1
To the extent that claimant raises issues in her brief
related to the denial of her application for reconsideration and
full Board review, these issues are not properly before us, as
claimant did not file a timely notice of appeal from that
decision (see Workers' Compensation Law § 23; Matter of Visic v
O'Nero & Sons Constr. Co., 74 AD3d 1646, 1647 n [2010]).
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the Board appropriately determined that claimant violated
Workers' Compensation Law § 114-a by making false representations
regarding material facts and that the discretionary penalty of
permanent disqualification from receiving wage replacement
benefits was warranted (see Matter of Losurdo v Asbestos Free, 1
NY3d 258, 265-266 [2003]; Matter of Hodzic v TTSI, Inc., 117 AD3d
1379, 1380 [2014]). We have considered claimant's remaining
contentions and, to the extent that they are properly before us,
have found them to be without merit.
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court