| Matter of Ward v General Utils. |
| 2012 NY Slip Op 07341 [100 AD3d 1113] |
| November 8, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of James Ward,Claimant, v General Utilities et al., Respondents, and NY Choice Self-Insurance Trust etal., Appellants. Workers' Compensation Board, Respondent. |
—[*1] Stewart, Greenblatt, Manning & Baez, Syosset (Peter M. DeCurtis of counsel), for GeneralUtilities and another, respondents. Weiss, Wexler & Wornow, PC, New York City (Michael J. Reynolds of counsel), for BrightBurner Service, Inc. and another, respondents.
McCarthy, J. Appeal from a decision of the Workers' Compensation Board, filed September15, 2010, which, among other things, ruled that claimant sustained a work-related occupationaldisease and awarded workers' compensation benefits.
Claimant was employed as an oil burner mechanic for over 40 years when, in March 2007, hefiled a workers' compensation claim for an occupational disease. After a spate of [*2]hearings, a Workers' Compensation Law Judge determined that,based upon an independent medical examination, claimant suffered from asbestosis with a dateof disablement of May 17, 2006. The Workers' Compensation Law Judge further determinedthat, pursuant to Workers' Compensation Law § 44-a, claimant experienced the lastinjurious exposure to asbestos during his employment with Astro Fuel Service Company. TheWorkers' Compensation Board affirmed and Astro and its workers' compensation carrier nowappeal.
We affirm. When a claimant suffers his or her last injurious exposure to a dust hazardpursuant to Workers' Compensation Law § 44-a is a question of fact for the Board toresolve and its determination will not be disturbed if supported by substantial evidence (see Matter of Wilson v Southern TierCustom Fabricators, 51 AD3d 1228, 1229 [2008]; Matter of Kotakis v L & JConcrete Corp., 39 AD2d 788, 788 [1972], lv denied 30 NY2d 488 [1972]). Here,claimant testified that Astro was the last employer for which he worked prior to his date ofdisablement, that he had been exposed to asbestos while so employed and that, despiteperforming some work on his own after leaving Astro, he had not been exposed to asbestos.While a representative of Astro testified that claimant was not exposed to asbestos during hisemployment there, credibility determinations and the resolution of conflicting evidence arewithin the exclusive province of the Board (see Matter of Blotko v Solomon Oliver Mech. Contr., 91 AD3d990, 991 [2012]; Matter of Hamzav Steinway & Sons, 88 AD3d 1033, 1033 [2011]). Thus, despite the existence ofevidence that would have supported a contrary conclusion, the Board's decision is supported bysubstantial evidence (see Matter ofRosario v AIG, 96 AD3d 1111, 1113 [2012]; Matter of Jennings v Avanti Express, Inc., 91 AD3d 999, 1000[2012]).
Mercure, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the decision isaffirmed, without costs.