                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 4, 2014                   517501
________________________________

In the Matter of the Claim of
   RONALD VAN ETTEN,
                    Respondent,
      v

MOHAWK VALLEY COMMUNITY                     MEMORANDUM AND ORDER
   COLLEGE et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   August 21, 2014

Before:   McCarthy, J.P., Garry, Egan Jr., Lynch and Clark, JJ.

                             __________


      Wolff, Goodrich & Goldman, LLP, Syracuse (Robert E. Geyer
Jr. of counsel), for appellants.

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

                             __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed December 7, 2012, which, among other things, ruled that
claimant violated Workers' Compensation Law § 114-a.

      Claimant obtained workers' compensation benefits for a
right inguinal hernia and lower back injury that he sustained in
2008. The self-insured employer and its third-party
administrator (hereinafter collectively referred to as the
                              -2-                517501

employer) alleged in 2010 that claimant had violated Workers'
Compensation Law § 114-a by knowingly misrepresenting the degree
of his disability. The Workers' Compensation Board ultimately
determined that claimant had violated section 114-a, but found
the discretionary penalty of disqualifying him from receiving
future wage replacement benefits to be unwarranted. The employer
now appeals.

      We affirm. The parties do not dispute that claimant
violated Workers' Compensation Law § 114-a (1); rather, the
employer contends that the Board erred in failing to disqualify
claimant from receiving future wage replacement benefits. The
refusal to impose that discretionary penalty will only be
disturbed, however, if the Board abused its discretion as a
matter of law (see Matter of Kelly v Safir, 96 NY2d 32, 38
[2001]; Matter of Liguori v Beloten, 76 AD3d 1156, 1157 [2010],
lv denied 16 NY3d 702 [2011]; Matter of Peguero v Halo's Rest.,
24 AD3d 986, 987 [2005]). Surveillance footage in this case
demonstrated that claimant was capable of walking normally and
performing other tasks in a manner that was inconsistent with his
behavior in the presence of physicians. Claimant testified that
his ability to perform those tasks was dependent upon when he had
taken his pain medication and the dosage used. His family
physician concurred that "the medication could help him be more
mobile." The Board elected not to impose the discretionary
penalty because of this evidence that claimant's varying degrees
of mobility did not entirely stem from an intent to mislead and,
inasmuch as the Board's leniency is not "so disproportionate to
the offense, in the light of all the circumstances, as to be
shocking to one's sense of fairness," we decline to disturb the
penalty (Matter of Pell v Board of Educ. of Union Free School
Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester
County, 34 NY2d 222, 233 [1974] [internal quotation marks and
citation omitted]; see Matter of Losurdo v Asbestos Free, 1 NY3d
258, 267 [2003]).

      As a final matter, the cases cited by the employer are
"sufficiently distinguishable from the [present matter] to
warrant a different result" (Matter of Malone v Bernhardt Paving,
2 NY3d 756, 757 [2004]).


     McCarthy, J.P., Garry, Egan Jr. and Lynch, JJ., concur.
                        -3-                  517501

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
