                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 22, 2016                   519829
________________________________

In the Matter of the Claim of
   SALVATORE CIRRINCIONE,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
SCISSORS WIZARD et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   November 15, 2016

Before:   Garry, J.P., Egan Jr., Devine, Clark and Mulvey, JJ.

                             __________


      Vecchione, Vecchione & Connors, LLP, Garden City Park
(Leslie Wong of counsel), for appellants.

      Law Offices of Anthony Ranieri, Ozone Park (Anthony Ranieri
of counsel), for Salvatore Cirrincione, respondent.

      Eric T. Schneiderman, Attorney General, New York City
(Donya Fernandez of counsel), for Workers' Compensation Board,
respondent.

                             __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed December 26, 2013, which ruled, among other things, that
claimant did not violate Workers' Compensation Law § 114-a.

      In December 1988, claimant sustained a compensable injury
to his head and face when a shotgun blast came through the front
                              -2-                519829

store window where he was working as a hairstylist. Unable to,
among other things, use his left hand due to cognitive injuries,
claimant was subsequently classified with a permanent total
disability. In 2011, the employer's workers' compensation
carrier alleged that claimant had violated Workers' Compensation
Law § 114-a. Following a hearing, which included a report from
an investigator who conducted video surveillance of claimant
performing certain activities at his father's gas station in 2008
and 2010, a Workers' Compensation Law Judge, among other things,
found that claimant misrepresented his work status to his
doctors, the carrier and the Workers' Compensation Board in
violation of Workers' Compensation Law § 114-a and disqualified
him from receiving future benefit payments. Upon review, the
Board found that claimant did not violate Workers' Compensation
Law § 114-a and reinstated his benefits. The employer and its
workers' compensation carrier now appeal.

      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." The
Board is the sole arbiter of witness credibility, and its
determination as to whether a claimant violated Workers'
Compensation Law § 114-a will not be disturbed if supported by
substantial evidence (see Matter of Petrillo v Comp USA, 131 AD3d
1282, 1283 [2015]; Matter of Hamza v Steinway & Sons, 88 AD3d
1033, 1033 [2011]).

      At the hearing, claimant testified that, due to his
condition, he lives at home with his parents and sister and is
dependent upon them. He acknowledged his activities at the gas
station and explained that helping out with minor tasks at the
gas station is therapeutic for him and keeps him mentally and
physically engaged. Claimant explained that, despite his efforts
at the gas station, he requires assistance from staff to perform
any of the desired tasks. Claimant asserted that he does not
have any specific duties at the gas station, that he is allowed
to come and go as he pleases and that he is not required to show
                              -3-                  519829

up on any given day. Claimant's father testified that he
encourages claimant to visit the gas station to stay active and
social and that claimant is neither an employee nor does he
receive compensation. Given the foregoing evidence, including
the lack of any evidence in the record demonstrating that
claimant attempted to conceal his activities at the gas station
or mislead his physicians for the purpose of obtaining benefits,
the Board was entitled to credit the hearing testimony of
claimant and his father to conclude that claimant was not
bartering his services at the gas station in exchange for room
and board at his parents' home and that his parents were simply
providing for their son's needs and well-being (see Matter of
Lleshi v DAG Hammarskjold Tower, 123 AD3d 1386, 1387 [2014];
Matter of Engoltz v Stewart's Ice Cream, 91 AD3d 1066, 1067
[2012]). Accordingly, we discern no basis to disturb the Board's
decision that claimant did not violate Workers' Compensation Law
§ 114-a (see Matter of Hamza v Steinway & Sons, 88 AD3d at 1033;
Matter of Petit v Syracuse Hous. Auth., 30 AD3d 797, 798-799
[2006]; Matter of Feisthamel v Marcy Correctional Facility, 26
AD3d 554, 555 [2006]).

     Garry, J.P., Egan Jr., Devine and Mulvey, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
