State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 29, 2015 518560 

________________________________

In the Matter of the Claim of

JAMES TANGORRE,

Appellant,

v

MEMORANDUM AND ORDER

TECH HOME ELECTRIC, LLC, et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: December 16, 2014

Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.

__________

Buckley, Mendleson, Criscione & Quinn, Albany (Rebeccah W.

Kane of counsel), for appellant.

Stockton, Barker & Mead, LLP, Troy (Sarah Merritt of

counsel), for Tech Home Electric, LLC and another, respondents.

__________

McCarthy, J.

Appeal from a decision of the Workers' Compensation Board,

filed May 16, 2013, which ruled that claimant violated Workers'

Compensation Law § 114-a and permanently disqualified him from

receiving future wage replacement benefits.

In 2010, claimant suffered work-related injuries to his

neck, left shoulder and left arm and was awarded workers'

compensation benefits. In June 2012, the employer and its

workers' compensation carrier (hereinafter collectively referred

to as the carrier) raised the issue of labor market attachment. 
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Thereafter, claimant faxed payment invoices to his former

attorney that reflected that he had been working part time since

February 2012.1 The attorney forwarded the invoices to the

Workers' Compensation Board. The carrier then raised the issue

of whether claimant had violated Workers' Compensation Law § 114-

a based upon misrepresentations regarding work activity while

collecting benefits. At a subsequent hearing, claimant testified

that he had informed his former attorney of the part-time work in

February 2012, at the time he started the job, and that he

believed that the attorney would have informed the carrier. The

Workers' Compensation Law Judge found, despite having "serious

reservations concerning the credibility of the claimant's

testimony," that there was insufficient evidence of a violation

of Workers' Compensation Law § 114-a. Upon review, the Board

reversed, ruling that claimant knowingly made misrepresentations

in violation of Workers' Compensation Law § 114-a by falsely

testifying that he reported his return to work to his attorney in

February 2012, and determined that, based on both mandatory and

discretionary disqualifications, claimant forfeited all benefits

received after September 29, 2012. Claimant now appeals.

We affirm. "The 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 Hammes v Sunrise Psychiatric

Clinic, Inc., 66 AD3d 1252, 1252 [2009] [citations omitted]; see

Matter of Borgal v Rochester-Genesee Regional Transp. Auth., 108

AD3d 914, 915 [2013]). Here, although claimant testified that he

informed his attorney in February 2012 of his return to work, the

Board found that this testimony was not credible, based upon its

determination that the letter sent by claimant to his attorney in

June 2012 accompanying the payment invoices constituted the first

time that claimant had reported that he had returned to work. In

the letter, claimant described the job to his attorney, including

where he was working, when he started, the hours he was working

and the rate of pay. In the letter, claimant also asked his

attorney whether claimant should forward the invoices to anyone

else. In light of the Board's broad authority to resolve issues

1 Claimant hired new counsel in July 2012.
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of credibility and draw reasonable inferences from the record

evidence (see Matter of Rolleri v Mastic Beach Ambulance Co.,

Inc., 106 AD3d 1292, 1293 [2013], lv denied 21 NY3d 865 [2013];

Matter of Caballero v Fabco Enters., 77 AD3d 1028, 1029 [2010],

lv dismissed 16 NY3d 780 [2011]), we conclude that the Board's

decision is supported by substantial evidence.

Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court