From Casetext: Smarter Legal Research

Matter of Kenny v. County of Nassau

Appellate Division of the Supreme Court of New York, Third Department
Jun 23, 1977
58 A.D.2d 696 (N.Y. App. Div. 1977)

Opinion

June 23, 1977


Appeal from a decision of the Workmen's Compensation Board, filed July 17, 1975, which ruled that claimant sustained a compensable injury as a result of an industrial accident on April 19, 1972. Claimant was employed as an equipment operator by appellant, self-insured employer, when, on April 19, 1972, he allegedly aggravated a pre-existing back condition while operating a jackhammer. In January of 1973 he filed a claim for compensation benefits arising out of the alleged accident which was controverted by appellant, and following a hearing, a referee disallowed the claim on the ground that claimant had not shown that he suffered "a new and separate accident and/or injury" in 1972 apart from his earlier back injuries in 1965 and 1966. By a 2 to 1 vote, the board reversed the referee's decision, however, and found that claimant suffered an injury to his back as a result of the jackhammer incident, that he notified appellant of the accident the same day by reporting the incident to his foreman, and that his resultant disability was causally related. As a consequence, the claim was restored to the referee's calendar, and claimant was granted a compensation award without prejudice to apportionment thereof between appellant and the employers involved in claimant's two earlier back accidents. On this appeal, appellant argues that the board's determination that claimant suffered a compensable injury on April 19, 1972 is not based upon substantial evidence in the record as a whole. We disagree. Although the allegation that claimant sustained an industrial accident in April of 1972 is supported primarily by claimant's own testimony and appellant contested claimant's version of what actually occurred, this conflict only presented questions of fact involving contradictory testimony and the credibility of witnesses which are for the board to determine (Workmen's Compensation Law, § 20; Matter of Slade v Perkins, 42 A.D.2d 667). As for the board's additional finding of a causal relationship between claimant's operation of the jackhammer and his resultant disability, there is substantial evidentiary support therefor in the unequivocal medical reports submitted by Dr. Leonard Weiss (Workmen's Compensation Law, § 21, subd 5; Matter of Curatola v Boulevard Gardens Housing Corp., 48 A.D.2d 717). Defendant's further contention that claimant did not comply with the notice requirements of the Workmen's Compensation Law is similarly without merit. The board's finding that appellant was notified of the accident on the day of its occurrence by claimant's report to his foreman has ample support in the record, and said report rendered written notice to appellant unnecessary (see Workmen's Compensation Law, § 18). Decision affirmed, with one bill of costs to respondents filing briefs. Greenblott, J.P., Mahoney, Main, Larkin and Herlihy, JJ., concur.


Summaries of

Matter of Kenny v. County of Nassau

Appellate Division of the Supreme Court of New York, Third Department
Jun 23, 1977
58 A.D.2d 696 (N.Y. App. Div. 1977)
Case details for

Matter of Kenny v. County of Nassau

Case Details

Full title:In the Matter of the Claim of ROBERT J. KENNY, Respondent, v. COUNTY OF…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 23, 1977

Citations

58 A.D.2d 696 (N.Y. App. Div. 1977)

Citing Cases

Matter of Teague v. Rockville Reconditioning

This court ruled that the injuries suffered were in the course of employment. The case at bar cannot be…

Matter of Ham v. Rumsey Sheet Metal, Inc.

As to the claim of lack of notice and resulting prejudice to the carrier, we note that the testimony of…