Opinion
June 28, 1967
Appeal by the employer from a decision of the Workmen's Compensation Board awarding benefits to the claimant. The issue is whether or not the accident arose out of and in the course of the employment. It is undisputed that there existed an employer-employee relationship and that the accident occurred on the premises of the employer and involved a machine used in the employer's business. The appellant contends that the accident did not occur in the course of employment. In this regard it is the employer's contention that the claimant was not hired to operate the machine which caused the injury and that the claimant was not supposed to be at work until later in the day than the time of the injury. The claimant submitted two claim forms on both of which he set forth that his regular work was as a machine operator and that he was injured while operating a machine. His unsworn testimony was to the same effect. The employer's foreman testified that he could not remember the boy but did remember the accident; that he did not hire the claimant and did not with any exactitude describe the nature of his employment. Although he said that the starting time was 8:30 A.M., he testified that the machine men start earlier. The claimant had punched his time card at 7:59 A.M. and the accident occurred sometime before 8:30 A.M. He stated that the claimant was supposed to be doing the same work as the day before the accident and that this did not involve the machine. However, he did not testify that he had assigned the claimant to any particular work on the previous day. He did make the statement that he remembered the duties that had been delegated to the claimant, but he made no direct statement that the board was obligated to accept as to what he had told this claimant to do when he originally came to work on the day before the accident. There is substantial evidence to support the board's finding that the accident arose out of and in the course of the employment. The unsworn testimony of the claimant cannot qualify as substantial evidence. (See Matter of Boskin v. Bresee Chevrolet Co., 27 A.D.2d 969.) However, the record establishes that there was an employer-employee relationship and that the accident happened during the regular working hours of the establishment and while operating a machine on the premises. The testimony of the employer was equivocal as to whether or not the claimant's employment involved this particular work. While the claimant's only proof consisted of his two claims for compensation (C-3) and his unsworn testimony that his employment required the operation of the particular machine which caused the injury, the inference from the fact of employment and actual operation of the machine is that this was a part of his employment. ( Matter of Stork Rest. v. Boland, 282 N.Y. 256, 266.) The board was not obligated to accept the testimony of the foreman and the credibility of such witnesses is a matter solely within the jurisdiction of the board. (See Matter of Luftig v. Stevenson Pie Co., 23 A.D.2d 920, affd. 18 N.Y.2d 734.) The record as a whole is sufficient to sustain the finding "that the claimant was not specifically prohibited by the employer from using the machine, nor is there any evidence that the claimant, in using the machine, was engaged in a venture for his personal use". Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.