Opinion
November 16, 1961
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by claimant from a decision of the Workmen's Compensation Board which disallowed his claim for compensation upon the ground that claimant did not sustain an accident on June 6, 1957, as claimed. In its memorandum of decision the board states: "Upon review of the record we find that the claimant did not sustain an accident as alleged and that his back condition is not in any way related to his employment. His claim that on June 6, 1957 he injured his back when he lifted and carried two heavy cases, one filled with coffee and one filled with tea, is not supported by the weight of the evidence." Claimant testified that he sustained such an accident and felt pain in his back on June 6, 1957. However, he continued to work until June 14. He also testified that on June 15 he felt pains in his back while bending to tie his shoe laces. There are substantial discrepancies in claimant's testimony. There is a conflict of evidence as to when he first gave any notice or history of the alleged accident. There is evidence that he made no complaints of pain or injury between June 6 and June 14. Claimant first went to a doctor, whom he paid personally, on June 17, 1957, and finally underwent an operation for a herniated intervertebral disc. There is some evidence that claimant had had back trouble of long standing. While there is medical testimony of causation based upon the assumption that claimant sustained the accident as alleged, the board has based its decision squarely upon its conclusion that he did not sustain such an accident. It was within the province of the board to either accept or reject claimant's testimony or any evidence in support thereof. ( Matter of Gordon v. Gordon Hyman, 11 A.D.2d 833.) Upon this record only a question of fact was presented, and we may not say as a matter of law that the board must accept claimant's testimony. Decision unanimously affirmed, without costs.