| Matter of Gardner v Nurzia Constr. Corp. |
| 2009 NY Slip Op 05040 [63 AD3d 1385] |
| June 18, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jeffrey A. Gardner, Appellant, v NurziaConstruction Corporation et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Stockton, Barker & Mead, L.L.P., Albany (Leith Carole Ramsey of counsel), for NurziaConstruction Corporation and another, respondents.
Rose, J. Appeals (1) from a decision of the Workers' Compensation Board, filed April 24,2007, which ruled that claimant's injury did not arise out of and in the course of his employmentand denied his claim for workers' compensation benefits, and (2) from two decisions of saidBoard, dated March 11, 2008 and October 10, 2008, which denied claimant's requests forreconsideration or full Board review.
Claimant filed for workers' compensation benefits, alleging that he had fallen from a ladderand sustained disabling head injuries while working alone at the employer's construction site.Finding claimant's testimony that he sustained his injuries while working for the employer to beincredible, the Workers' Compensation Law Judge disallowed his claim. The Workers'Compensation Board affirmed, and this appeal ensued.
Claimant argues that the statutory presumption that an unwitnessed accident at the time andplace of employment arose out of that employment applies here (see Workers'Compensation Law § 21 [1]). We cannot agree, however, as the presumption cannot beused to establish that claimant suffered his accident while at work (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]; Matter of McCabe v WatertownCorrectional Facility, 301 AD2d 766, 767 [2003], lv denied 100 NY2d 501 [2003]).Here, the central issue is whether an accident occurred at work. As this is a factual question forthe Workers' Compensation Board, its determination will not be disturbed if supported bysubstantial evidence (see e.g. Matter of McCabe v Watertown Correctional Facility, 301AD2d at 767 [2003]).
Claimant testified that he fell off a ladder at his work site, was knocked unconscious whenhe landed on his head, and later woke to find himself dazed and in a pool of blood. He testifiedthat he loaded the ladder and some—but not all—of his tools onto his van and,because he was too dazed to drive himself home, he called his mother to do so. His mother thenmade the half-hour drive from their home to pick him up, they left his van in the parking lot atthe job site and, although his head wound continued to bleed and was clearly serious, he stayedat home and did not go to the hospital until over 22 hours following the alleged workplaceaccident. Notably, claimant called no witnesses to corroborate his account even though hismother was present at the hearing. The employer's owner testified that neither he nor asupervisor had found any evidence of claimant's blood, tools or van when they later visited thework site. The owner also asserted that, upon inquiry, none of the other contractors who were atthe work site at the relevant time had reported seeing claimant, his tools, his van or his blood.Acknowledging that the employer's evidence largely consisted of hearsay, the Workers'Compensation Law Judge nonetheless rejected claimant's account, deeming his alleged actions tobe unusual, inconsistent and uncorroborated.
Inasmuch as the Board had broad authority to credit the testimony of the employer's witnessand discredit claimant's testimony (seeMatter of Hernandez v Vogel's Collision Serv., 48 AD3d 861, 861 [2008]; Matter ofSantiago v Otisville Correctional Facility, 39 AD3d at 1110), and given that hearsaytestimony was admissible in this proceeding (see Matter of Gutierrez v Courtyard by Marriott, 46 AD3d 1241,1243 [2007]), the Board properly found that claimant failed to establish that his injuries weresustained in the course of his employment (see Matter of Koerner v Orangetown PoliceDept., 68 NY2d 974, 975 [1986]; Matter of Hansen v Syracuse Home Assn., 55 AD3d 1167, 1168[2008]). Further, in light of this, we cannot agree with claimant that the Board's denials of hisapplications for full Board review were arbitrary and capricious or an abuse of discretion (see Matter of VanDermark v Frontier Ins.Co., 60 AD3d 1171, 1172-1173 [2009]).
Mercure, J.P., Malone Jr., Stein and Garry, JJ., concur. Ordered that the decisions areaffirmed, without costs.