April 27, 2022

Claimant's failing to report work performed while receiving workers' compensation benefits results in his permanent disqualification from receiving future benefits

A claimant for Workers' Compensation Benefits [Claimant] appealed a decision of the Workers' Compensation Board which, among other things, found Claimant violated Workers' Compensation Law §114-a by failing to report work that he had performed while receiving benefits. The penalty imposed by the Board: permanently disqualifying Claimant from receiving future wage replacement benefits.

The Appellate Division's decision in this action notes that the record indicated that although Claimant had represented on forms submitted to the insurance carrier that he had not engaged in any work for any employer or for his own business since the date of the accident, Claimant's hearing testimony and his social media posts indicated that he had performed certain "side jobs, including concrete work, plaster work and painting ... for which he was paid" while he was receiving workers' compensation benefits.

Noting that omitting "material information" may constitute a knowing false statement or misrepresentation, the Appellate Division sustained the Board's decision. The court explained that determining whether a claimant seeking workers' compensation benefits has violated Workers' Compensation Law §114-a is within the province of the Board. In addition, said the Appellate Division, the Board is "the sole arbiter of witness credibility, and its decision will not be disturbed if supported by substantial evidence."

Citing Kornreich v Elmont Glass Co., Inc., 194 AD3d 1322, the Appellate Division sustained the Board's decision, noting that "the Board's determination that [Claimant's] failure to disclose his work activities constituted a knowing misrepresentation in violation of Workers' Compensation Law §114-a and was supported by substantial evidence." To the extent that Claimant relied on "exculpatory evidence" in support of his claim, the Appellate Division opined that this created "a credibility issue for the Board's resolution."

Click HERE to access the text of the Appellate Division's decision.

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