                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 30, 2015                    519437
________________________________

In the Matter of the Claim of
   DAN HARPER,
                    Respondent,
      v

PUBLIC ENERGY FUEL SERVICE                  MEMORANDUM AND ORDER
   et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   March 24, 2015

Before:   Peters, P.J., Egan Jr., Rose and Lynch, JJ.

                             __________


      Stewart Greenblatt Manning & Baez, Syosset (Robert W.
Manning of counsel), for appellants.

      Vecchione, Vecchione & Connors LLP, Garden City (Heather N.
Babits of counsel), for Dan Harper, respondent.

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

                             __________


Lynch, J.

      Appeal from a decision of the Workers' Compensation Board,
filed October 18, 2013, which ruled that claimant did not violate
Workers' Compensation Law § 114-a.
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      Claimant obtained workers' compensation benefits as the
result of a 2002 back injury and was eventually found to suffer
from a permanent total disability. He was prescribed the opiate
Kadian and was required to undergo urine drug tests to ensure
that he was taking the medication. After a physician retained by
the employer and its workers' compensation carrier (hereinafter
collectively referred to as the employer) pointed out that those
tests revealed that claimant was not taking Kadian on a regular
basis, claimant was discharged from the care of his pain
management physician. The employer argued that claimant had
knowingly misrepresented his Kadian usage, and that he should be
disqualified from receiving wage replacement benefits pursuant to
Workers' Compensation Law § 114-a. The Workers' Compensation
Board ultimately disagreed, and the employer now appeals.

      We affirm. Workers' Compensation Law § 114-a (1) provides
for both mandatory and discretionary penalties when, for the
purpose of obtaining wage replacement benefits "or for the
purpose of influencing any determination regarding any such
payment, a claimant knowingly makes a false statement or
representation as to a material fact" (see e.g. Matter of
Rodriguez v Burn-Brite Metals Co., 1 NY3d 553, 555 [2003]). As
such, while "a false statement need not affect the dollar value
of an award to be material within the meaning of section 114–a
(1)," it must be significant to the existence of a claim for
workers' compensation benefits (Matter of Losurdo v Asbestos
Free, 1 NY3d 258, 265 [2003]; see Matter of Jordan v Saratoga
County Pub. Health Nurses, 45 AD3d 1074, 1074-1075 [2007]; Matter
of Lopresti v Washington Mills, 23 AD3d 725, 726 [2005]).
Claimant here attempted to explain why he did not routinely take
Kadian, but the Board rejected his testimony as incredible. The
Board nevertheless noted the lack of evidence that claimant was
selling the excess Kadian or attempting to profit from it and,
accordingly, found that the record did not establish that his
misrepresentations were made for purposes of obtaining
compensation (see Matter of Donato v Aquarian Designs, Inc., 96
AD3d 1302, 1304 [2012]; compare Matter of Harabedian v New York
Hosp. Med. Ctr., 35 AD3d 915, 916 [2006]; Employer: Telespectrum
Worldwide, Inc., 2009 WL 607974, *3, 2009 NY Wrk Comp LEXIS 5919,
*8-9 [WCB No. 9990 0694, Mar. 2, 2009]). Thus, substantial
evidence supports the Board's determination that a penalty under
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Workers' Compensation Law § 114-a (1) was not warranted (see
Matter of Borgal v Rochester-Genesee Regional Transp. Auth., 108
AD3d 914, 915-917 [2013]; Matter of Engoltz v Stewart's Ice
Cream, 91 AD3d 1066, 1067 [2012]).

      The employer's further contention, that the Board
disregarded its prior precedent without explanation, has been
considered and rejected.

     Peters, P.J., Egan Jr. and Rose, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
