| Matter of Wilson v Southern Tier Custom Fabricators |
| 2008 NY Slip Op 04408 [51 AD3d 1228] |
| May 15, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Carl Wilson, Respondent, v SouthernTier Custom Fabricators et al., Appellants, and Cornell University, Respondent. Workers'Compensation Board, Respondent. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Binghamton (Cynthia Ann Manchester of counsel),for Cornell University, respondent.
Mercure, J. Appeal from a decision of the Workers' Compensation Board, filed May 12,2006, which, among other things, ruled that claimant sustained a work-related occupationaldisease and awarded workers' compensation benefits.
Claimant was employed as a sheet metal worker for nearly 40 years. In May 2002, he wasdiagnosed as suffering from asbestosis. He filed a claim for workers' compensation benefits inApril 2003, and the matter proceeded to a hearing. Ultimately, the issue distilled to identifyingthe employer in whose employment claimant suffered his last injurious exposure to asbestos(see Workers' Compensation Law § 44-a). A Workers' Compensation Law Judgefound that the last exposure occurred while claimant was in the employ of Southern Tier CustomFabricators (hereinafter the employer). Upon review, a panel of the Workers' CompensationBoard affirmed, [*2]prompting this appeal by the employer andits carrier.
We affirm. The question of when claimant suffered his last injurious exposure to asbestos isa factual matter for the Board to resolve, and its determination in this regard, if supported bysubstantial evidence, will not be disturbed (see Matter of Pelli v St. Luke's Mem. Hosp.Ctr., 307 AD2d 555, 556 [2003], lv denied 1 NY3d 501 [2003]). "[T]he Board is thesole and final judge of witness credibility, and it alone can evaluate the factors relevant todetermining whether the testimony of a party or witness is worthy of belief" (Matter ofMcCabe v Peconic Ambulance & Supplies, 101 AD2d 679, 680 [1984]). Moreover, theBoard may draw "any reasonable inference" from the evidence contained in the record(Matter of Castro v Tishman Speyer Props., 303 AD2d 790, 791 [2003] [internalquotation marks and citation omitted]), and this Court "will not interfere with the Board'sresolution of conflicting facts even if the evidence rejected by the Board also is substantial"(Matter of Altman v Hazan Import Corp., 198 AD2d 674, 675 [1993]; accord Matter of Ball v New Era Cap Co.,Inc., 21 AD3d 618, 620 [2005]). Given claimant's extensive hands-on experience andhis uncontradicted testimony regarding the materials he encountered, the Board reasonably couldinfer that claimant's last injurious exposure indeed occurred while working for the employer,despite other evidence that would support a contrary result. Accordingly, we decline to disturb itsdecision.
Cardona, P.J., Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the decision isaffirmed, with costs.