                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   521734
________________________________

In the Matter of the Claim of
   FERN H. LEISING,
                    Respondent,
      v

WILLIAMSVILLE CENTRAL SCHOOL                MEMORANDUM AND ORDER
   DISTRICT et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 9, 2016

Before:   McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

                             __________


      Hamberger & Weiss, Buffalo (Kristin M. Machelor of
counsel), for appellants.

                             __________


Aarons, J.

      Appeal from an amended decision of the Workers'
Compensation Board, filed December 11, 2014, which ruled, among
other things, that claimant did not violate Workers' Compensation
Law § 114-a and revised her workers' compensation benefits.

      Claimant began receiving workers' compensation benefits in
2010 stemming from a work-related injury. A hearing was held to
determine whether claimant violated Workers' Compensation Law
§ 114-a based upon her failure to disclose her part-time
employment at a golf course. Although such a violation was
found, the Workers' Compensation Law Judge (hereinafter WCLJ) did
not impose a mandatory penalty "as the earnings were negligible."
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The WCLJ instead imposed a discretionary penalty of a lifetime
disqualification from further compensation benefits. The
Workers' Compensation Board, in a January 2014 decision, reversed
the WCLJ's determination and concluded that, even if claimant had
made an intentional misrepresentation to the employer's workers'
compensation carrier regarding her work status, the element of
materiality was lacking. The Board denied the subsequent
application by the employer and its carrier for full Board
review. The Board, however, issued an amended decision in
December 2014, which adhered to its prior decision but, instead
of finding a lack of materiality, it concluded that insufficient
evidence existed to show that claimant attempted to conceal her
part-time employment from the carrier. The employer and its
carrier appeal.

      A claimant may be disqualified from receiving workers'
compensation benefits "[i]f for the purpose of obtaining
compensation . . . or for the purpose of influencing any
determination regarding any such payment, [he or she] knowingly
makes a false statement or representation as to a material fact”
(Workers' Compensation Law § 114-a [1]). When supported by
substantial evidence, the Board's findings as to whether a
claimant violated Workers' Compensation Law § 114-a will not be
disturbed (see Matter of Martinez v Kingston City Sch. Dist., 140
AD3d 1421, 1423 [2016]; Matter of Petit v Syracuse Hous. Auth.,
30 AD3d 797, 798 [2006]). Where, however, substantial evidence
does not support the Board's determination and such determination
is premised upon factual inaccuracies or a mischaracterization of
the record, reversal is warranted (see Matter of Gramza v Buffalo
Bd. of Educ., 125 AD3d 1074, 1075 [2015]; Matter of Donato v
Aquarian Designs, Inc., 96 AD3d 1302, 1303 [2012]; Matter of
Passari v New York City Hous. Auth., 13 AD3d 853, 854-855
[2004]).

      We find that substantial proof is lacking to support the
Board's amended decision. Here, in June 2011, Sharon Newman, an
adjuster for the carrier, sent claimant a questionnaire asking
her, among other things, whether she had "worked in any
capacity." Claimant, through her attorneys, initially responded
that she was working, but her attorneys later rescinded that
response by stating that it contained an error and should have
                              -3-                521734

stated that claimant was not working. Claimant also sent her own
individual response to the questionnaire but did not state
therein whether or not she was working in any capacity.
Furthermore, between 2010 and 2012, progress reports by
claimant's doctor noted that claimant was not working. In
October 2012, when claimant called Newman for an authorization
for prescription medication, Newman noticed on the phone's caller
identification that claimant was calling from "the Par 3 golf
course." Newman advised claimant that she needed to speak with a
doctor and would have to call her back with a response. Instead
of calling claimant's cell phone, Newman called the golf course.
Claimant answered Newman's call by stating "Par 3 golf course."
An investigator was immediately dispatched to the golf course and
he took video surveillance of claimant. The investigator
disclosed in a report that claimant had stated that she had been
working at the golf course for approximately four years.

      Under these circumstances, we cannot conclude that the
proof was of "such quality and quantity as to generate conviction
in and persuade a fair and detached fact finder" that claimant
did not attempt to conceal her employment activities (300
Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176,
181 [1978]). To the contrary, the record reveals that, even
though claimant was admittedly employed at a golf course during
the summers of 2010, 2011 and 2012, claimant, in response to the
inquiries by the carrier as to her work status, never
affirmatively disclosed such employment and, in fact, denied any
employment activity (see Matter of Gramza v Buffalo Bd. of Educ.,
125 AD3d at 1076-1077; Matter of Passari v New York City Hous.
Auth., 13 AD3d at 855; Matter of Fighera v New York City Dept. of
Envtl. Protection, 303 AD2d 861, 862 [2003], lv denied 100 NY2d
514 [2003]).

      While the Board found that claimant's attorneys advised
Newman's predecessor in 2010 about claimant's part-time
employment, this finding is premised on uncorroborated hearsay
(see Matter of Rosa v June Elec. Corp., 140 AD3d 1353, 1355
[2016]). Furthermore, although it is within the Board's purview
to assess the credibility of the witnesses (see Matter of Lleshi
v DAG Hammarskjold Tower, 123 AD3d 1386, 1387 [2014]), we, unlike
the Board, discern no deviations or inconsistencies between
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Newman's affidavit and her hearing testimony giving rise to a
credibility issue. Rather, Newman's affidavit, viewed in
conjunction with her testimony, reveals that, when Newman called
the golf course and asked claimant whether she was working,
claimant denied being employed. Claimant's hearing testimony
likewise did not contradict Newman's recollection of that
conversation inasmuch as claimant remembered Newman asking her
about her work status. Instead of answering Newman's question,
however, claimant "avoided the conversation" and never
affirmatively stated whether or not she was employed (see Matter
of Hammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d 1252, 1253
[2009]; Matter of Jordan v Saratoga County Pub. Health Nurses, 45
AD3d 1074, 1075 [2007]; Matter of Passari v New York City Hous.
Auth., 13 AD3d at 855; compare Matter of Engoltz v Stewart's Ice
Cream, 91 AD3d 1066, 1067 [2012]). As such, this was not a
situation in which credibility was at issue.

      In light of the foregoing, remittal to the Board is
necessary for a determination as to whether claimant's failure to
disclose her seasonal work "was material, and done both knowingly
and for the purpose of obtaining benefits" (Matter of Gramza v
Buffalo Bd. of Educ., 125 AD3d at 1077; see Matter of Church v
Arrow Elec., Inc., 69 AD3d 983, 985 [2010]).

     McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.


      ORDERED that the amended decision is reversed, without
costs, and matter remitted to the Workers' Compensation Board for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
