| Date: | 01/19/2018 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | VS-17-130 |
The Petitioner, Ronald Morris, appealed from the decision of the Department of Veterans’ Services (DVS) Hearing Officer dated March 3, 2017, which upheld the decision of the Veterans’ Service Office (VSO) of the Town of Montague to terminate his state benefits and place him in refund status in the amount of $797.39 benefits for failure to disclose income earned painting a house in October 2016 and being “over asset” by virtue of possessing antique automobiles. 108 CMR §§ 6.01 and 8.05. The Hearing Officer found that Mr. Morris failed to fully disclose his income and disclose all of his assets. The appeal was filed on March 16, 2017.
I held a hearing on July 19, 2017 at the offices of the Division of Administrative Law Appeals, One Congress Street, Boston, MA pursuant to G.L. c. 7, § 4H, G.L. c. 115, and 108 CMR 8.01, et seq. I issued the following Decision on December 6, 2017:
“The decision of the DVS to terminate the Petitioner’s Chapter 115 benefits for failure to report income from the October 2016 house painting job is affirmed. The Petitioner’s assertion that he received no compensation for that work is not credible. The Nissan he alleges was compensation for the project was purchased on September 1, 2016, more than a month prior to his commencing work on the Lively house. The Certificate of Title was issued on September 23, 2016, at least two (2) weeks prior to his commencing the work. No contract for the painting work was offered as evidence to support his claim. His assertions are uncorroborated by any testimony from the home owner. No evidence was offered as to the value of his labors, however, the parties have stipulated that the fair market value for the approximately twenty (20) hours of work was $1,700. The uncorroborated self-serving testimony of a witness standing alone is not tantamount to a preponderance of evidence. Cf. Paul Conway v. Medford Retirement Board, CR-04-436 (Division of Administrative Law Appeals October 15, 2004) (affirmed Contributory Retirement Appeal Board April 12, 2005.) Although $1,700 is the value of both the paint job and the Nissan, I do not find it plausible that the homeowner would have prepaid in September for the entire paint job the Petitioner was to perform for him in October.
The Petitioner alleged further that part of the bargain between him and Mr. Lively was the transfer of his 1979 Mercury Cougar to Lively that would have reduced the net value of the car transfer to the Petitioner. This notion makes it even less likely that the transfer to the Petitioner of the Nissan was in payment for future painting services. Further, no documents or testimony have been provided to support this assertion. Conway, supra. Accordingly, the Petitioner may not offset the value of the Cougar against the value of the Nissan in order to reduce the amount of compensation imputed to him for painting the house.
Prior to his been observed exerting energy, carrying buckets of paint and standing on a ladder for extended periods while he painted the house, the Petitioner had asserted to VSO Neijadlik that he was unable to perform any work due to physical limitations. He was collecting and continues to collects SSI benefits on the basis of his complaints which are belied by the photographs and testimony in the record.
The income received in exchange for the painting work was the agreed on $1,700. The Petitioner did not report this income to Neijadlik as he was required to do pursuant to 108 CMR 8.05. He also failed to produce the documents disclosing his income pursuant to 108 CMR 6.01. Accordingly the NOAs of action are upheld.
The Petitioner proffered independent evidence regarding the value of his vehicles in the form of the Amherst Appraisals. I find that these appraisals are more reliable indicators of the values of the specific vehicles in question because the person(s) conducting the appraisals had the opportunity to inspect the vehicles and form an opinion as to their value based upon their condition. The appraisals are a more reliable indicator of the value of the Triumph TR8 and the 1987 Dodge Shelby Charger than the NADA Guides figures proffered by the Respondent because they independently and in conjunction with the Petitioner’s testimony support the assertion that the vehicles owned by the Petitioner are in poor condition. The fair value of the Nissan is excluded from any asset calculation because it is the Petitioner’s primary mode of transportation.
The appraisals of the TR8 and Shelby Charger ($1,300 and $1,850) total $3,150. The Yamaha was valued at $500. The total of these assets is $3,650, substantially less than the $5,000 non-excludable asset limit established by DVS. It should be noted that the Petitioner sold the Yamaha in June 2017. Accordingly, he was erroneously placed in refund status on the basis of being “over asset.”
The Petitioner filed a Motion for Clarification via facsimile on January 10, 2018. It was received via the USPS on January 12, 2018.
By way of clarification, the Petitioner owes the local Veterans’ Service Office/VSO the amount by which he was over-income of $797.39. He owes no additional monies due to the conclusion that he was erroneously placed in refund status.
BY:
Division of Administrative Law Appeals,
Judithann Burke, Administrative Magistrate
DATED: January 19, 2018
