                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 1, 2016                   522342
________________________________

In the Matter of the Claim of
   KEITH KODRA,
                    Appellant,
      v

MONDELEZ INTERNATIONAL, INC.
   et al.,                                  MEMORANDUM AND ORDER
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 18, 2016

Before:   Peters, P.J., Garry, Devine, Clark and Aarons, JJ.

                             __________


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

      Walsh & Hacker, Albany (Matthew C. Kidd of counsel), for
Mondelez International, Inc. and another, respondents.

                             __________


Garry, J.

      Appeal from a decision of the Workers' Compensation Board,
filed March 24, 2015, which ruled that claimant violated Workers'
Compensation Law § 114–a and disqualified him from receiving
future wage replacement benefits.

      Claimant had an established claim for a work-related injury
to his shoulder in January 2013, after which he continued to work
light duty until he underwent shoulder surgery in May 2013.
Claimant was thereafter classified as temporarily totally
                              -2-                522342

disabled and remained out of work, receiving wage replacement
benefits until October 2013, when he returned to regular duty
work. The employer raised the issue of whether claimant had
violated Workers' Compensation Law § 114-a and submitted video
surveillance taken in July and August 2013 that captured him
performing lawn mowing and some related activities. Following a
hearing at which claimant admitted that he had collected
temporary total disability benefits while actively working in his
lawn care business, a Workers' Compensation Law Judge concluded
that claimant had not violated Workers' Compensation Law § 114-a.
The Workers' Compensation Board reversed, finding that a
statutory violation had been established. The Board imposed a
penalty equal to the wage replacement benefits paid to claimant
between August 12, 2013 and October 8, 2013 and, further,
permanently disqualified him from receiving any future wage
replacement payments. Claimant appeals.

      Workers' Compensation Law § 114–a (1) provides that a
claimant who "knowingly makes a false statement or representation
as to a material fact . . . shall be disqualified from receiving
any compensation directly attributable to such false statement or
representation." Any such compensation already paid to a
claimant must be rescinded by the Board (see Workers'
Compensation Law § 114–a [1]), which "also has the discretionary
authority to disqualify [a] claimant from receiving any future
wage replacement benefits" (Matter of Martinez v Kingston City
Sch. Dist., 140 AD3d 1421, 1422 [2016]). In making this
determination, "the Board is the sole arbiter of witness
credibility and its determination that a claimant violated
Workers' Compensation Law § 114–a will be upheld if supported by
substantial evidence" (Matter of Snyder v Cring, 140 AD3d 1554,
1554 [2016] [internal quotation marks, brackets and citations
omitted]).

      Claimant testified that in addition to his employment, he
has independently owned and operated a lawn care and plowing
business since 1994, with no employees. He admitted that, as he
improved after his surgery, he resumed performing lawn cutting
services approximately twice a week while collecting wage
replacement benefits attributable to a temporary total disability
from his regular employment, as documented by his treating
                               -3-                522342

surgeon. He testified that he informed the surgeon that he was
working part time in his lawn care business and that, after
discussing the type of equipment he was using, the surgeon
restricted him only from activities that involved lifting his
injured arm higher than his shoulder. A note in claimant's
medical records submitted by the surgeon to the workers'
compensation carrier, included in a report in which the surgeon
found claimant to be temporarily totally disabled, also stated
that claimant was working part time in his lawn care business.1
Claimant further testified that, during the period when he was
collecting temporary total disability benefits, he twice advised
his employer that he wanted to return to light duty work, but was
told each time that he could not do so until cleared by his
physician.

      In a July 2013 intake form for a medical examination
requested by the carrier, claimant indicated that he was not
working, and he reported the same to the carrier's consultant,
whose report reflects that claimant was not working or
volunteering "in any manner" and classified him as totally
disabled. Claimant testified that he misunderstood the intake
form and intended his negative response about work to indicate
that he was not working in the primary employment from which he
had been found to be temporarily totally disabled. In an August
23, 2013 letter to the carrier, claimant's attorney advised that
he was only able to perform supervisory work for the lawn care
business; claimant later admitted that he had been performing
manual work, but none that violated his surgeon's restrictions
against lifting his injured arm. Surveillance video taken of
claimant in August 2013 showed him operating a riding lawnmower
and briefly using a weed trimmer.

      Contrary to claimant's argument, an omission of material
information may constitute a knowing false statement or
misrepresentation (see Matter of Jordan v Saratoga County Pub.
Health Nurses, 45 AD3d 1074, 1074-1075 [2007]). We thus find
that substantial evidence supports the Board's credibility


     1
        Claimant's regular employment required use of his arm and
shoulder in repetitive heavy lifting and pushing.
                              -4-                  522342

determination that claimant's failure to fully describe and
disclose his lawn mowing activities to the carrier and the
carrier's consultant at the time of the medical examination
constituted knowing false statements to obtain workers'
compensation benefits in violation of Workers' Compensation Law
§ 114-a (1) (see Matter of Martinez v Kingston City Sch. Dist.,
140 AD3d at 1423; Matter of Poupore v Clinton County Hwy. Dept.,
138 AD3d 1321, 1322-1324 [2016]).

      We reach a different conclusion as to the Board's
determination permanently disqualifying claimant from receiving
any future wage replacement benefits. The applicable standard is
that the penalty imposed may not be disproportionate to the
underlying misconduct (see Matter of Harp v New York City Police
Dept., 96 NY2d 892, 894 [2001]). In cases where this very
significant sanction has been approved, the underlying deception
has been deemed "egregious" or severe, or there was a lack of
mitigating circumstances (Matter of Adams v Blackhorse Carriers,
Inc., 142 AD3d 1273, 1275 [2016]; see e.g. Matter of Retz v
Surpass Chem. Co., Inc., 39 AD3d 1037, 1038-1039 [2007]; Matter
of Harabedian v New York Hosp. Med. Ctr., 35 AD3d 915, 916
[2006]). Here, the Board provided no rationale supporting its
determination that this onerous penalty was warranted, and we
find inadequate support for such a finding upon review.

     Peters, P.J., Devine, Clark and Aarons, JJ., concur.



      ORDERED that the decision is modified, without costs, by
reversing so much thereof as disqualified claimant from receiving
all future wage replacement benefits, and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
