Claim of Neville v. Jaber
In the Matter of the Claim of Lisa Neville v. Diala Jaber, Workers' Compensation Board
Full Opinion (html_with_citations)
Appeal from a decision of the Workersâ Compensation Board, filed August 17, 2005, which ruled that claimant did not sustain an accident in the course of her employment and denied her claim for workersâ compensation benefits.
While unwitnessed accidents occurring in the course of employment are presumed to arise out of such employment (see Matter of Pinto v Southport Correctional Facility, 19 AD3d 948, 949 [2005]), this presumption âcannot be used to establish that an accident occurredâ in the first instance (Matter of Fedor-Leo v Broome County Sheriffs Dept., 305 AD2d 760, 760 [2003]; see Matter of Strassberg v Hilton Hotel Corp., 299 AD2d 667, 668 [2002]). Moreover, whether 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 evidence (see Matter of Santiago v Otisville Correctional Facility, 39 AD3d 1109, 1110 [2007]; Matter of Fedor-Leo v Broome County Sheriffs Dept., supra). Substantial evidence exists here, namely, evidence that claimant failed to report the incident to her employer when it first happened, offered differing versions regarding the specifics of the incident and was less than forthright about her prior medical history of back problems. As it is exclusively within the Boardâs province to resolve issues of witness credibility (see Matter of Moore v Morrisonâs Healthcare, 297 AD2d 887, 888 [2002]), the Board was entitled to reject claimantâs version of events and to find that no accident occurred.
Claimantâs 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.