                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 29, 2015                   518560
________________________________

In the Matter of the Claim of
   JAMES TANGORRE,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
TECH HOME ELECTRIC, LLC, et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   December 16, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.

                             __________


      Buckley, Mendleson, Criscione & Quinn, Albany (Rebeccah W.
Kane of counsel), for appellant.

      Stockton, Barker & Mead, LLP, Troy (Sarah Merritt of
counsel), for Tech Home Electric, LLC and another, respondents.

                             __________


McCarthy, J.

      Appeal from a decision of the Workers' Compensation Board,
filed May 16, 2013, which ruled that claimant violated Workers'
Compensation Law § 114-a and permanently disqualified him from
receiving future wage replacement benefits.

      In 2010, claimant suffered work-related injuries to his
neck, left shoulder and left arm and was awarded workers'
compensation benefits. In June 2012, the employer and its
workers' compensation carrier (hereinafter collectively referred
to as the carrier) raised the issue of labor market attachment.
                               -2-                 518560

Thereafter, claimant faxed payment invoices to his former
attorney that reflected that he had been working part time since
February 2012.1 The attorney forwarded the invoices to the
Workers' Compensation Board. The carrier then raised the issue
of whether claimant had violated Workers' Compensation Law § 114-
a based upon misrepresentations regarding work activity while
collecting benefits. At a subsequent hearing, claimant testified
that he had informed his former attorney of the part-time work in
February 2012, at the time he started the job, and that he
believed that the attorney would have informed the carrier. The
Workers' Compensation Law Judge found, despite having "serious
reservations concerning the credibility of the claimant's
testimony," that there was insufficient evidence of a violation
of Workers' Compensation Law § 114-a. Upon review, the Board
reversed, ruling that claimant knowingly made misrepresentations
in violation of Workers' Compensation Law § 114-a by falsely
testifying that he reported his return to work to his attorney in
February 2012, and determined that, based on both mandatory and
discretionary disqualifications, claimant forfeited all benefits
received after September 29, 2012. Claimant now appeals.

      We affirm. "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 AD3d 1252, 1252 [2009] [citations omitted]; see
Matter of Borgal v Rochester-Genesee Regional Transp. Auth., 108
AD3d 914, 915 [2013]). Here, although claimant testified that he
informed his attorney in February 2012 of his return to work, the
Board found that this testimony was not credible, based upon its
determination that the letter sent by claimant to his attorney in
June 2012 accompanying the payment invoices constituted the first
time that claimant had reported that he had returned to work. In
the letter, claimant described the job to his attorney, including
where he was working, when he started, the hours he was working
and the rate of pay. In the letter, claimant also asked his
attorney whether claimant should forward the invoices to anyone
else. In light of the Board's broad authority to resolve issues


    1
        Claimant hired new counsel in July 2012.
                              -3-                  518560

of credibility and draw reasonable inferences from the record
evidence (see Matter of Rolleri v Mastic Beach Ambulance Co.,
Inc., 106 AD3d 1292, 1293 [2013], lv denied 21 NY3d 865 [2013];
Matter of Caballero v Fabco Enters., 77 AD3d 1028, 1029 [2010],
lv dismissed 16 NY3d 780 [2011]), we conclude that the Board's
decision is supported by substantial evidence.

     Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
