In the Matter of the Claim of Shaun M. Calabrese, Appellant,
Fortini Inc., Respondent, and State Insurance Fund, Respondent. Workers' Compensation Board, Respondent.
Calendar Date: December 18, 2019
Panepinto PC, Buffalo (Holly L. Schoenborn of counsel), for
Offices of Melissa A. Day, PLLC, Amherst (Henry B. Tilson of
counsel), for State Insurance Fund, respondent.
Before: Garry, P.J., Egan Jr., Aarons, Pritzker and
from a decision of the Workers' Compensation Board, filed
November 29, 2018, which ruled that claimant violated
Workers' Compensation Law § 114-a and permanently
disqualified him from receiving future wage replacement
2015, claimant suffered a work-related injury to his back and
was awarded workers' compensation benefits. The employer
thereafter raised the issue of labor market attachment.
Following a hearing, the employer argued that claimant had
violated Workers' Compensation Law § 114-a based
upon alleged misrepresentations that he made regarding his
search for employment. In an amended decision, a Workers'
Compensation Law Judge found that claimant had provided false
reports and testimony regarding his search for employment in
violation of Workers' Compensation Law § 114-a (1)
and imposed both the mandatory penalty and the discretionary
penalty of disqualifying claimant from receiving future
benefits for his claim. The Workers' Compensation Board
affirmed, and claimant appeals.
affirm. "Pursuant to Workers' Compensation Law
§ 114-a (1), a person may be disqualified from receiving
workers' compensation benefits when he or she knowingly
makes a false statement or representation as to a material
fact for the purpose of obtaining such benefits"
(Matter of Martinez v. LeFrak City Mgt., 100 A.D.3d
1110, 1111  [internal quotation marks, brackets and
citation omitted]; accord Matter of Cucinella v. New York
City Tr. Auth., 102 A.D.3d 1066, 1067 , lv
denied 21 N.Y.3d 863');">21 N.Y.3d 863 ). "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 A.D.3d 1252, 1252  [citations
omitted]; accord Matter of Tangorre v. Tech Home Elec.,
LLC, 124 A.D.3d 1183, 1184 ). Further,
"hearsay evidence is permissible as long as it is
corroborated or found to be otherwise sufficiently
reliable" (Matter of Pugliese v. Remington
Arms, 293 A.D.2d 897, 897-898  [internal citation
reported and testified that he had filed numerous job
applications either in person, by email or by a paper
application provided by the prospective employers. An
investigator hired by the employer contacted various
employers to which claimant reported to have submitted an
application. According to the investigator's report and
testimony, in which he identified whom he spoke to and when,
the prospective employers informed him that there was no
application on file from claimant, the contact name listed by
claimant did not work for the prospective employer, the
position applied for did not exist and/or the prospective
employer did not provide or accept applications in the form
that claimant purportedly used in submitting the application.
In our view, the investigator's report and testimony,
although hearsay, was sufficiently reliable and provided
substantial evidence supporting the Board's finding that
claimant made false misrepresentations in order to obtain
benefits (see Matter of Gardner v. Nurzia Constr.
Corp., 63 A.D.3d 1385, 1386 ; compare Matter
of Cruz v. Buffalo Bd. of Educ., 138 A.D.3d 1316, 1318
). In light of the evidence that claimant filed false
reports and gave false testimony regarding his job search, we
will not disturb the Board's determination (see
Matter of Adams v. Blackhorse Carriers, Inc., 142 A.D.3d
1273, 1275 ; Matter of Petrillo v. Comp USA,
131 A.D.3d 1282, 1283 ). Claimant's remaining
claims have been considered and found to be without merit.
P.J., Egan Jr., Pritzker and ...