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In re Claim of Calabrese

Supreme Court of New York, Third Department

January 9, 2020

In the Matter of the Claim of Shaun M. Calabrese, Appellant,
v.
Fortini Inc., Respondent, and State Insurance Fund, Respondent. Workers' Compensation Board, Respondent.

          Calendar Date: December 18, 2019

          Dolce Panepinto PC, Buffalo (Holly L. Schoenborn of counsel), for appellant.

          Law 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 Colangelo, JJ.

          AARONS, J.

         Appeal 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 benefits.

         In 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.

         We 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 [2012] [internal quotation marks, brackets and citation omitted]; accord Matter of Cucinella v. New York City Tr. Auth., 102 A.D.3d 1066, 1067 [2013], lv denied 21 N.Y.3d 863');">21 N.Y.3d 863 [2013]). "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 [2009] [citations omitted]; accord Matter of Tangorre v. Tech Home Elec., LLC, 124 A.D.3d 1183, 1184 [2015]). 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 [2002] [internal citation omitted]).

         Claimant 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 [2009]; compare Matter of Cruz v. Buffalo Bd. of Educ., 138 A.D.3d 1316, 1318 [2016]). 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 [2016]; Matter of Petrillo v. Comp USA, 131 A.D.3d 1282, 1283 [2015]). Claimant's remaining claims have been considered and found to be without merit.

          Garry, P.J., Egan Jr., Pritzker and ...


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