State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 6, 2016 522272
________________________________
In the Matter of the Claim of
MIA HOWARD,
Appellant,
v
FACILITIES MAINTENANCE MEMORANDUM AND ORDER
CORPORATION et al.,
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: September 15, 2016
Before: Peters, P.J., Egan Jr., Lynch, Rose and Aarons, JJ.
__________
Law Office of Ernest L. Harris, LLP, Newburgh (Ernest L.
Harris of counsel), for appellant.
Stockton Barker & Mead, LLP, Troy (John B. Paniccia of
counsel), for Facilities Maintenance Corporation and another,
respondents.
__________
Egan Jr., J.
Appeal from a decision of the Workers' Compensation Board,
filed April 27, 2015, which ruled that claimant violated Workers'
Compensation Law § 114-a and disqualified her from receiving
further workers' compensation benefits.
In April 2013, claimant suffered work-related injuries to
her back and neck in a motor vehicle accident and was awarded
workers' compensation benefits. In May 2014, the employer's
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workers' compensation carrier raised the issue of whether
claimant had violated Workers' Compensation Law § 114-a.
Following a hearing, which included reports from investigators
who conducted video surveillance of claimant, a Workers'
Compensation Law Judge found that claimant had violated Workers'
Compensation Law § 114-a and imposed the mandatory forfeiture
penalty and disqualified her from receiving future benefit
payments. The Workers' Compensation Board modified this decision
by setting the period for the mandatory penalty of forfeiture of
benefits to between December 2013 to October 2014 and otherwise
affirmed. Claimant now appeals.
We affirm. Pursuant to Workers' Compensation Law § 114-a,
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." Further, the Board's
determination as to whether a claimant violated the provision
will not be disturbed if supported by substantial evidence (see
Matter of Dacey v Sweeteners Plus, Inc., 129 AD3d 1405, 1406
[2015]; Matter of Denman v Cobbler's Rest., 106 AD3d 1289, 1290
[2013]).
The record reflects that, between October 2013 and April
2014, claimant represented to both her treating physicians and
the carrier's medical expert that, due to her injuries, her
mobility was limited in that she was homebound, had difficulty
walking and spent most of her time in bed. Claimant complained
of a sensitivity to light and noise and stated that she kept the
lights off most of the time; she also complained of pain in her
back and neck, and the physicians observed that claimant walked
with a slow, awkward gait. The reports prepared by the
investigators, based upon video surveillance of claimant during
the time period between November 2013 and March 2014, reflect
that claimant was observed driving her car, walking normally,
going to stores and restaurants and carrying shopping bags.
Although claimant testified that she accurately described her
physical condition to the physicians, this created a credibility
issue for the Board to resolve (see Matter of Hershewsky v
Community Gen. Hosp., 125 AD3d 1068, 1068-1069 [2015]; Matter of
Church v Arrow Elec., Inc., 69 AD3d 983, 985 [2010]). In our
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view, the Board's decision that claimant violated Workers'
Compensation Law § 114-a is supported by substantial evidence and
will not be disturbed. Moreover, in light of the foregoing and
given the Board's explanation that the disqualification from
receiving future benefits was due to claimant's "egregious and
intentional misrepresentations" concerning her condition, we
cannot say that the penalty was disproportionate to her conduct
(see Matter of Poupore v Clinton County Hwy. Dept., 138 AD3d
1321, 1324 [2016]; Matter of Hammes v Sunrise Psychiatric Clinic,
Inc., 66 AD3d 1252, 1253 [2009]).
Peters, P.J., Lynch, Rose and Aarons, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court