                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 30, 2016                     520871
________________________________

In the Matter of the Claim of
   SAMUEL R. SNYDER,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
BETTE CRING et al.,
                      Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   June 2, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ.

                             __________


      Wolff, Goodrich & Goldman, LLP, Syracuse (Robert E. Geyer
of counsel), for appellants.

      Christine Scofield, Syracuse, for Samuel R. Synder,
respondent.

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

                             __________


Garry, J.

      Appeal from a decision of the Workers' Compensation Board,
filed June 27, 2014, which ruled that claimant did not violate
Workers' Compensation Law § 114-a.

      While employed with a construction company, claimant
sustained work-related injuries to his left wrist and left
                              -2-                520871

shoulder and was awarded workers' compensation benefits. The
employer and its workers' compensation carrier (hereinafter
collectively referred to as the employer) subsequently raised the
issue of whether claimant violated Workers' Compensation Law
§ 114-a by not disclosing any prior similar injuries involving
his left shoulder and wrist. The Workers' Compensation Law Judge
ruled that claimant did not violate Workers' Compensation Law
§ 114-a and continued compensation benefits. The Workers'
Compensation Board affirmed that decision and this appeal by the
employer ensued.

      We affirm. 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." Furthermore, "[t]he 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
Petrillo v Comp USA, 131 AD3d 1282, 1283 [2015] [internal
quotation marks and citation omitted]; see Matter of Hershewsky v
Community Gen. Hosp., 125 AD3d 1068, 1068 [2015]). Here,
claimant testified that he did inform the doctors and the
employer's examining consultant about the left shoulder and wrist
pain that he experienced on and off for years prior to the
accident and that some of the doctors' notes were inaccurate.
Claimant's medical records reflect that he previously had
received treatment for the pain he experienced. Although
claimant answered "No" to the question on the C-3 employee claim
form that asked if he "remember[ed] having another injury to the
same body part or a similar illness," he explained that he did
not consider pain and injury to be synonymous. The Board
credited claimant's exculpatory explanation that he considered an
injury to be more than the mere presence of pain (see Matter of
Monroe v Town of Chester, 42 AD3d 862, 864-865 [2007]; Matter of
Husak v New York City Tr. Auth., 40 AD3d 1249, 1250 [2007]), and
we find that substantial evidence supports the Board's decision
that claimant did not violate Workers' Compensation Law § 114-a
by knowingly making false statements concerning a material fact.
                        -3-                  520871

McCarthy, J.P., Lynch, Devine and Aarons, JJ., concur.



ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
