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In re Claim of Pompeo

Supreme Court of New York, Third Department

July 27, 2017

In the Matter of the Claim of PETER POMPEO, Claimant,
v.
AUCTION DIRECT USA LP et al., Appellants. WORKERS' COMPENSATION BOARD, Respondent.

          Calendar Date: June 1, 2017

          Hamberger & Weiss, Rochester (Stephen P. Wyder of counsel), for appellants.

          Eric 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

          CLARK, J.

         Appeal from a decision of the Workers' Compensation Board, filed May 10, 2016, which ruled that claimant did not violate Workers' Compensation Law § 114-a.

         In 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 [1] 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.

         In 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.

         Workers' 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 [2010], lv denied 16 N.Y.3d 702');">16 N.Y.3d 702 [2011]). 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 [2016]; Matter of Kodra v Mondelez Intl., Inc., 145 A.D.3d 1131, 1132 [2016]; Matter of Lleshi v DAG Hammarskjold Tower, 123 A.D.3d 1386, 1387 [2014]).

         In 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 [2015]). 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 [2016]; Matter of Johnson v New York State Dept. of Transp., 305 A.D.2d 927, 927-928 [2003]). 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 [2013]).

          McCarthy, J.P., Lynch, Devine and Aarons, JJ., concur.

         ORDERED that the decision is affirmed, without costs.

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