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."

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Employee found guilty of charges of excessive absences from work and latenesses terminated from the position

In this CPLR Article 78 action challenging the termination of an employee found guilty of incompetence and misconduct due to excessive absences caused by physical incapacity, the Appellate Division, citing Romano v Town Bd. of Town of Colonie, 200 AD2d 934, observed that although the employee may offer "a valid" reason for each one of the individual absences set out in the disciplinary charges at issue that fact "is irrelevant to the ultimate issue of whether his [or her] unreliability and its disruptive and burdensome effect on the employer rendered him [or her] incompetent to continue his [or her] employment."

Citing Matter of Cupo v Uniondale Fire Dist., 181 AD3d 594, the court explained that judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 "is limited to consideration of whether the determination was supported by substantial evidence." Further, the Appellate Division noted that "A reviewing court 'may not weigh the evidence or reject the choice made by [the administrative agency] where the evidence is conflicting and room for choice exists.'"

Finding that substantial evidence* in the record supports the determination that the employee was guilty of incompetence and misconduct as charged, with the employee's failure to give more than a few hours of advance notice for any of these absences, was disruptive and burdensome in that the employee's supervisor was forced to perform the employee's work in addition to the supervisor's own tasks. Further, opined the Appellate Division, the fact that the employee received "retroactive authorization" for some of these absences is "irrelevant to the ultimate issue" here: the employee's unreliability had a disruptive and burdensome effect, rendering the employee incompetent.

Applying the Pell doctrine,** the Appellate Division found that on the record before it, imposing the penalty of termination was not "'so disproportionate to the offense as to be shocking to one's sense of fairness" and this did not constituting an abuse of discretion as a matter of law.

* Substantial evidence has been defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact [Matter of Berenhaus v Ward, 70 NY2d 436].

**See Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

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Determining if a statement alleged to have been made by a party constitutes defamation of a public entity or it members for the purposed of litigation

The members of a town planning board [Board] commenced a lawsuit in Supreme Court to recover damages claimed to have resulted from allegedly defamatory statements made by the Defendants contained in a letter published on the "opinion" page of a nonparty newspaper. The Defendants moved pursuant to CPLR 3211(a)(7) to have Supreme Court dismiss the Boards complaint. Supreme Court granted Defendants' motion and the Board appealed the court's ruling.

In its decision the Appellate Division, citing Stone v Bloomberg L.P., 163 AD3d 1028, quoting Greenberg v Spitzer, 155 AD3d 27: "The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se."

However, explained the court, "Whether a particular statement constitutes an opinion or objective fact is a question of law," [see Mann v Abel, 10 NY3d at 276]. Further, said the Appellate Division, in determining whether a challenged statement is opinion or fact, the factors to be considered by courts are:

"(1) whether the specific language at issue has a precise, readily understood meaning;

"(2) whether the statements are capable of being proven true or false; and

"(3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers that what is stated is likely to be opinion, not fact."

Applying these factors in the instant case, the Appellate Division concluded that Supreme Court "properly determined that the statements at issue constituted nonactionable expressions of opinion."

Although the Board had contend that the statements at issue "are reasonably susceptible of defamatory connotations," the Appellate Division opined that the Board's complaint failed to "make a rigorous showing that the language of the [article] as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the [Defendants] intended or endorsed that inference," citing Udell v NYP Holdings, Inc., 169 AD3d at 957, quoting Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 37-38.

Accordingly, the Appellate Division sustained Supreme Court's ruling.

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