Calendar Date: June 1, 2017
Hamberger & Weiss, Rochester (Stephen P. Wyder of
counsel), for appellants.
T. Schneiderman, Attorney General, New York City (Nina M. Sas
of counsel), for Workers' Compensation Board, respondent.
Before: McCarthy, J.P., Lynch, Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
May 10, 2016, which ruled that claimant did not violate
Workers' Compensation Law § 114-a.
2008, claimant established a work-related injury involving a
low back strain and was awarded workers' compensation
benefits. Claimant continued to receive lost wage benefits
through August 15, 2012, at which time his benefits were
suspended on the basis that there was a lack of up-to-date
medical evidence. In January 2013, claimant pleaded guilty to
violating probation  by committing a crime that
"involved the sale of a controlled substance or a
narcotic." Two days later, in an Alford plea,
claimant further pleaded guilty to criminal sale of a
controlled substance in the third degree and criminal sale of
a controlled substance in the fifth degree. In accordance
with the terms of the negotiated plea agreements, claimant
was sentenced to three concurrent prison terms of three
years, followed by a period of postrelease supervision.
2014, upon his release from prison, claimant applied for
further workers' compensation benefits. The employer and
its workers' compensation carrier (hereinafter
collectively referred to as the employer) opposed
claimant's request, alleging, as is relevant here, that
claimant violated Workers' Compensation Law § 114-a
(1) by failing to report income that he earned from the sale
of controlled substances or narcotics while he was receiving
workers' compensation benefits. Following a hearing, the
Workers' Compensation Law Judge ruled, among other
things, that claimant committed fraud by selling narcotics
for money and failing to disclose the income received, and
permanently barred claimant from all lost wage benefits after
February 21, 2012. The Workers' Compensation Board, with
one dissenting panel member, reversed the decision of the
Workers' Compensation Law Judge, finding, among other
things, that there was insufficient proof that claimant
received income from the sale of the narcotics. That
determination was affirmed by a vote of 7 to 4 upon full
Board review. This appeal by the employer ensued.
Compensation Law § 114-a (1) provides that, "[i]f
for the purpose of obtaining compensation... or for the
purpose of influencing any determination regarding any such
payment, a claimant knowingly makes a false statement or
representation as to a material fact, such person shall be
disqualified from receiving any compensation directly
attributable to such false statement or representation"
(see Matter of Hadzaj v Harvard Cleaning Serv., 77
A.D.3d 1000, 1001 , lv denied 16 N.Y.3d 702');">16 N.Y.3d 702
). In making such a determination, the Board is the
sole arbiter of witness credibility and its determination as
to whether a claimant violated Workers' Compensation Law
§ 114-a will be upheld if supported by substantial
evidence (see Matter of Cirrincione v Scissors
Wizard, 145 A.D.3d 1325, 1326 ; Matter of
Kodra v Mondelez Intl., Inc., 145 A.D.3d 1131, 1132
; Matter of Lleshi v DAG Hammarskjold Tower,
123 A.D.3d 1386, 1387 ).
support of its assertion that claimant violated Workers'
Compensation Law § 114-a (1), the employer submitted the
transcripts of the 2012 plea allocutions resulting in
claimant's convictions for a violation of probation,
criminal sale of a controlled substance in the third degree
and criminal sale of a controlled substance in the fifth
degree. As a result of recording or transcription errors, the
transcript of the Alford plea proceeding is, at
times, indecipherable. In addition, both transcripts of the
2012 criminal convictions were insufficient to establish that
claimant received income while receiving workers'
compensation benefits or that he otherwise concealed his work
status. Further, the employer did not submit the certificate
of conviction for claimant's 2010 convictions or the
transcript of that underlying plea allocution. Although we
agree with the employer that the Board incorrectly analyzed
the 2012 criminal proceedings, we do not find that these
inaccuracies warrant reversal and remittal to the Board,
given that the Board primarily found that there was
insufficient evidence to find a violation of Workers'
Compensation Law § 114-a (1) (compare Matter of
Gramza v Buffalo Bd. of Educ., 125 A.D.3d 1074,
1075-1077 ). Accordingly, on this record, we decline to
disturb the Board's decision (compare Matter of Adams
v Blackhorse Carriers, Inc., 142 A.D.3d 1273, 1274-1275
; Matter of Johnson v New York State Dept. of
Transp., 305 A.D.2d 927, 927-928 ). Finally, under
the circumstances of this case, the employer's collateral
estoppel argument is without merit (see Matter of Howard
v Stature Elec., Inc., 20 N.Y.3d 522, 525-526 ).
McCarthy, J.P., Lynch, Devine and Aarons, JJ., concur.
that the decision is affirmed, without costs.