                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 25, 2015                     519338
________________________________

In the Matter of the Claim of
   JERRY DACEY,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
SWEETENERS PLUS, INC., et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   May 29, 2015

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

                             __________


      Law Office of John Wallace, Buffalo (Christina M. Hassler
of counsel), for appellants.

     Melvin Bressler, Pittsford, for Jerry Dacey, respondent.

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

                             __________


Egan Jr., J.

      Appeal from a decision of the Workers' Compensation Board,
filed January 22, 2013, which ruled that claimant did not violate
Workers' Compensation Law § 114-a.

      In September 2000, claimant sustained a work-related injury
to his back while operating a forklift; he was classified as
permanently partially disabled in 2006 and last reported working
                              -2-                519338

in 2007. He continued to receive workers' compensation benefits
for a temporary partial disability. Claimant subsequently
underwent spinal fusion surgery in 2009, and his benefits were
made permanent in July 2010. The employer's workers'
compensation carrier later raised the issue of whether claimant
violated Workers' Compensation Law § 114-a and disclosed that it
had carried out video surveillance of claimant in August 2010.
Hearings were held in 2011, at which claimant testified that he
had reported not working in 2010 to his treating physician and
the carrier's consultant, and that he had applied for maintenance
and cleaning work at Skye High Ink, a tattoo parlor owned by a
lifelong friend, but had not been hired or performed work there.
The carrier's investigator testified that he conducted 23 hours
of surveillance of claimant over a three-day period in August
2010, as depicted in the video recording and reflected in his
report. The Workers' Compensation Law Judge concluded that
claimant had violated Workers' Compensation Law § 114-a by, among
other things, not testifying truthfully at the hearing regarding
the true nature of his work activities at Skye High Ink and his
physical abilities, and imposed penalties. Upon review, the
Workers' Compensation Board reversed, concluding that the record
did not support a finding that claimant violated Workers'
Compensation Law § 114-a.

      We affirm. Pursuant to Workers' Compensation Law § 114-a
(1), a claimant who, for the purpose of obtaining wage
replacement benefits or to influence any determination related to
payment thereof, "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" (see Matter of Losurdo v
Asbestos Free, 1 NY3d 258, 264-266 [2003]). The determination of
the Board as to whether a claimant violated this provision "will
not be disturbed if substantial evidence supports it" (Matter of
Gillian v New York State Dept. of Corrections, 88 AD3d 1035, 1036
[2011]).

      Here, the Board found that, despite surveillance of
claimant over the course of three days, the investigator
"captured less than one hour of actual footage of . . .
claimant," during which there was one "isolated instance of . . .
                              -3-                  519338

claimant using an electric saw" to cut pieces of wood moulding
which, due to their size, did not appear to be "challenging."
The Board characterized the activity as "de minimis" and
concluded that it "was not inconsistent with claimant's partial
disability," noting that there were no weight lifting
restrictions placed upon his activities and no other evidence
that claimant performed any work for that business, received
remuneration therefrom or was regularly present thereat. The
surveillance video, which – as relevant here – shows claimant
performing light wood-cutting activity for approximately 30
minutes outside the tattoo parlor, did not contradict his
testimony or the Board's factual findings that claimant did not
knowingly make false statements or representations (see Matter of
Lleshi v Dag Hammarskjold Tower, 123 AD3d 1386, 1387 [2014]).
Given that "[t]he Board is the sole arbiter of witness
credibility" (Matter of Borgal v Rochester-Genesee Regional
Transp. Auth., 108 AD3d 914, 915 [2013] [internal quotation marks
and citations omitted]) and its conclusions are supported by
substantial evidence in the record, its decision will not be
disturbed (see id. at 915-917; Matter of Feisthamel v Marcy
Correctional Facility, 26 AD3d 554, 555 [2006]).

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



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
