| Matter of Neville v Jaber |
| 2007 NY Slip Op 09987 [46 AD3d 1137] |
| December 20, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Lisa Neville, Appellant, v Diala Jaber,Respondent. Workers' Compensation Board, Respondent. |
—[*1] Jeffrey C. Daniels, P.C., Garden City (Jeffrey Daniels of counsel), for Diala Jaber,respondent.
Carpinello, J. Appeal from a decision of the Workers' Compensation Board, filed August 17,2005, which ruled that claimant did not sustain an accident in the course of her employment anddenied her claim for workers' compensation benefits.
In this workers' compensation proceeding, claimant alleges that she injured her back aftertripping on steps at work, an incident that was unwitnessed by anyone. Hearings were thereafterheld resulting in a decision by a Workers' Compensation Law Judge which characterizedclaimant's testimony as to the manner in which this incident purportedly occurred ascontradictory and her explanation of certain inconsistencies as "disingenuous." The Workers'Compensation Law Judge disallowed the claim based on his finding of "insufficient credibleevidence of an accident." The Workers' Compensation Board affirmed, resulting in this appeal.
While unwitnessed accidents occurring in the course of employment are presumed to ariseout of such employment (see Matter of Pinto v Southport Correctional Facility, 19 AD3d[*2]948, 949 [2005]), this presumption "cannot be used toestablish that an accident occurred" in the first instance (Matter of Fedor-Leo v BroomeCounty Sheriff's Dept., 305 AD2d 760, 760 [2003]; see Matter of Strassberg v HiltonHotel Corp., 299 AD2d 667, 668 [2002]). Moreover, whether a compensable accidentoccurred is a question of fact for the Board, and its determination will not be disturbed as long asit is supported by substantial evidence (see Matter of Santiago v Otisville Correctional Facility, 39 AD3d1109, 1110 [2007]; Matter of Fedor-Leo v Broome County Sheriff's Dept., supra).Substantial evidence exists here, namely, evidence that claimant failed to report the incident toher employer when it first happened, offered differing versions regarding the specifics of theincident and was less than forthright about her prior medical history of back problems. As it isexclusively within the Board's province to resolve issues of witness credibility (see Matter ofMoore v Morrison's Healthcare, 297 AD2d 887, 888 [2002]), the Board was entitled to rejectclaimant's version of events and to find that no accident occurred.
Claimant's remaining contentions have been considered and rejected as without merit.
Crew III, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the decision is affirmed,without costs.