                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 16, 2016                      521231
________________________________

In the Matter of the Claim of
   KATHY M. MARTINEZ,
                    Appellant,
      v

KINGSTON CITY SCHOOL DISTRICT                MEMORANDUM AND ORDER
   et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:    May 27, 2016

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

                              __________


      Law Offices of Richard C. Ebeling, Putnam Valley (Richard
C. Ebeling of counsel), for appellant.

      Ryan Roach & Ryan LLP, Kingston (Jill M. Johnson of
counsel), for Kingston City School District and another,
respondents.

                              __________


Rose, J.

      Appeal from a decision of the Workers' Compensation Board
filed August 22, 2014, which ruled that claimant violated
Workers' Compensation Law § 114-a and disqualified her from
receiving further workers' compensation benefits.

      As a result of a January 2005 work-related accident,
claimant sustained compensable injuries to her left ankle and
lower back and was awarded wage replacement benefits. Following
                               -2-                521231

claimant's October 2009 arrest for insurance fraud, and based
upon responses provided by claimant on a workers' compensation
questionnaire denying participation in any work or volunteer
activity since her 2005 accident and an investigation and a May
23, 2008 video surveillance of claimant, the employer sought to
suspend her wage replacement benefits. A hearing ensued, after
which a Workers' Compensation Law Judge (hereinafter the WCLJ)
found that claimant knowingly misrepresented her volunteer
activity with CitiVision, a youth-based camp formerly directed by
her husband, in order to obtain workers' compensation benefits in
violation of Workers' Compensation Law § 114-a (1). The WCLJ,
having imposed a mandatory and discretionary penalty, rescinded
benefits awarded to claimant from May 23, 2008 to November 9,
2009 and disqualified her from receiving future wage replacement
benefits. Upon administrative review, the Workers' Compensation
Board adopted and affirmed the decision of the WCLJ, and claimant
now appeals.

      Workers' Compensation Law § 114-a (1) provides that a
claimant will be disqualified from receiving compensation
attributable to a false statement or representation of a material
fact made for the purpose of obtaining wage replacement benefits.
Any compensation already paid to a claimant which is "directly
attributable" to a claimant's misrepresentations must be
rescinded by the Board (Workers' Compensation Law § 114-a [1];
see Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265 [2003];
Matter of Church v Arrow Elec., Inc., 69 AD3d 983, 984 [2010]).
The Board also has the discretionary authority to disqualify the
claimant from receiving any future wage replacement benefits
regardless of "whether or not the claimant is subject to the
mandatory penalty" (Matter of Losurdo v Asbestos Free, 1 NY3d at
265-266), even if the claimant has suffered a compensable injury
(see id. at 266; Matter of Lopresti v Washington Mills, 23 AD3d
725, 726, [2005]).1 In determining whether a claimant violated


     1
        Alternatively, the Board may, in its discretion, subject
a claimant to a monetary penalty not to exceed the amount of
benefits received that is directly attributable to the false
statement or representation (compare Workers' Compensation Law
§ 114-a [1], and Matter of Losurdo v Asbestos Free, 1 NY3d 258,
                              -3-                521231

Workers' Compensation Law § 114-a, we remain mindful that "'[t]he
Board is the sole arbiter of witness credibility and its
determination that claimant violated Workers' Compensation Law
§ 114-a will be upheld if supported by substantial evidence'"
(Matter of Petrillo v Comp USA, 131 AD3d 1282, 1283 [2015],
quoting Matter of Hammes v Sunrise Psychiatric Clinic, Inc., 66
AD3d 1252, 1252 [2009]; accord Matter of Tangorre v Tech Home
Elec., LLC, 124 AD3d 1183, 1184 [2015]).

      Here, claimant testified that she has not worked or
volunteered since her 2005 accident and that she has not
undertaken any duties relative to the operation of the CitiVision
camp. She also acknowledged that she received questionnaires
from the self-insured employer, including an August 8, 2008
questionnaire in which she denied having done any work or
volunteer activity since her 2005 accident. Contrary to her
testimony and questionnaire responses, an investigation and video
surveillance conducted by a field investigator demonstrated that
claimant was listed as a contact person for the CitiVision camp
and that, on May 23, 2008 when the video surveillance was
conducted, she was available in the camp's main office and
answered questions about the camp's activities. Furthermore,
claimant acknowledged that she might have assisted with answering
the camp's telephone and that she was authorized to sign checks
on behalf of CitiVision. In our view, the Board's determination
that claimant violated Workers' Compensation Law § 114-a by
making false representations regarding material facts for the
purpose of obtaining wage replacement benefits is supported by
substantial evidence and will not be disturbed (see Matter of
Petrillo v Comp USA, 131 AD3d at 1283; Matter of Woods v New York
State Thruway Auth., 27 AD3d 933, 933 [2006], lv denied 7 NY3d
716 [2006]).

      Turning to the penalties imposed as a result of claimant's
misrepresentation of a material fact, in our view the record
evidence does not support the Board's determination that the
mandatory penalty of forfeiture of benefits received applies from


265 [2003], with Matter of Church v Arrow Elec., Inc., 69 AD3d
983, 984 [2010]).
                              -4-                521231

May 23, 2008 — the date of the video surveillance of claimant —
to November 9, 2009, the date that claimant's wage replacement
benefits were suspended. Specifically, we do not agree with the
Board that the May 23, 2008 video surveillance of claimant
reveals a false statement or misrepresentation made by claimant
that is directly attributable to, and made for the purpose of
obtaining, wage replacement benefits (see Matter of Losurdo v
Asbestos Free, 1 NY3d at 265-266; Matter of Church v Arrow Elec.,
Inc., 69 AD3d at 985). Rather, the record before us establishes
that the first instance that claimant affirmatively made a false
statement and misrepresentation for the purpose of enabling her
continued receipt of wage replacement benefits is the August 8,
2008 questionnaire in which she denied any involvement in work or
volunteer activity.

      As for the additional discretionary sanction of
disqualifying claimant from receiving future wage replacement
benefits, the Board failed to provide "the rationale for the
imposition of a discretionary penalty" (Matter of McCormack v
Eastport Manor Constr., 19 AD3d 826, 829 [2005]), and, therefore,
absent any explanation for its decision to impose this penalty,
the Board failed to satisfy its obligation to "provide some basis
for appellate review" (Matter of Losurdo v Asbestos Free, 1 NY3d
at 267; cf. Matter of Robbins v Mesivtha Tifereth Jerusalem, 60
AD3d 1166, 1168 [2009]; Matter of Jordan v Saratoga County Pub.
Health Nurses, 45 AD3d 1074, 1075 [2007]; Matter of Lopresti v
Washington Mills, 23 AD3d at 726). Upon remittal, if the Board
determines, as a matter of discretion, that disqualification is
warranted, it should "provide some explanation for its
determination in this regard" (Matter of Losurdo v Asbestos Free,
1 NY3d at 267; see Matter of Bowes v Gulinello's Town & Country,
3 AD3d 805, 806 [2004]).

     McCarthy, J.P., Devine, Clark and Aarons, JJ., concur.
                              -5-                  521231

      ORDERED that the decision is modified, without costs, by
reversing so much thereof as directed recision of any benefits
received by claimant prior to August 8, 2008 and disqualified
claimant from receiving all future wage replacement benefits;
benefits are rescinded from August 8, 2008 to November 9, 2009
and matter remitted to the Workers' Compensation Board for
further proceedings not inconsistent with this Court's decision;
and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
