| Matter of Fortunato v Opus III VII Corp. |
| 2008 NY Slip Op 08566 [56 AD3d 905] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of John Fortunato, Appellant, v Opus IIIVII Corporation et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Vecchione, Vecchione & Connors, Williston Park (Leonard B. Feld, Jericho, of counsel), forOpus III VII Corporation and another, respondents.
Mercure, J.P. Appeals (1) from an amended decision of the Workers' Compensation Board,filed April 27, 2006, which ruled that claimant did not sustain an accident in the course of hisemployment and denied his claim for workers' compensation benefits, and (2) from a decision ofsaid Board, filed May 10, 2006, which denied claimant's request for reconsideration or full Boardreview.
Claimant, a salesperson, filed a claim for workers' compensation benefits, alleging that hesuffered injuries after he was struck by a car as he attempted to cross a street while out on a salescall in October 2003. Following hearings, a Workers' Compensation Law Judge established theclaim. On review, the Workers' Compensation Board reversed, finding that claimant's testimonyregarding the alleged accident was not credible. Claimant's request for full Board review orreconsideration was denied, and claimant now appeals.
We affirm. "[W]hether a compensable accident occurred is a question of fact for the Board,and its determination will not be disturbed as long as it is supported by substantial [*2]evidence" (Matter of Neville v Jaber, 46 AD3d 1137, 1138 [2007]; see Matter of Santiago v OtisvilleCorrectional Facility, 39 AD3d 1109, 1110 [2007]; Matter of Fedor-Leo v BroomeCounty Sheriff's Dept., 305 AD2d 760, 760 [2003]). Here, claimant testified that he wasstruck by a car on his left leg with enough force that he was thrown into the air and landed on thehood of the car and then fell to the ground. He testified that the car kept going but a passingmotorist caught up with the car and returned with the driver on foot. Claimant, however, did notget the driver's name or the passing motorist's name, and did not identify any other witnesses. Healso testified that he did not contact the police or, despite the force of the alleged impact, seekmedical attention that day. Moreover, although claimant did not make his scheduled sales callthat afternoon, he did not inform the employer of the accident until "[a] few days later." Whennotified, the employer asked if claimant wanted to file for workers' compensation benefits andclaimant initially refused; it was not until after claimant's employment was terminated inDecember 2003 that he filed his claim. Given the Board's "broad authority to resolve factualissues based on credibility of witnesses and draw any reasonable inference from the evidence inthe record" (Matter of Myers v Eldor Contr. Co., 270 AD2d 671, 672 [2000]; accord Matter of Gross v BJ's WholesaleClub, 29 AD3d 1051, 1052 [2006]), we find that substantial evidence supports theBoard's decision to reject claimant's contention that an accident had occurred (see Matter ofNeville v Jaber, 46 AD3d at 1138).
Claimant's remaining arguments have been considered and found to be lacking in merit.
Peters, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the amended decisionand decision are affirmed, without costs.