Caballero v. Fabco Enterprises

• Decision Date: 14 October 2010
• Parties: In the Matter of the Claim of Otilia CABALLERO, Appellant, v. FABCO ENTERPRISES et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 167
77 A.D.3d 1028

In the Matter of the Claim of Otilia CABALLERO, Appellant,
v.
FABCO ENTERPRISES et al., Respondents.
Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 14, 2010.

909 N.Y.S.2d 167

Otilia Caballero, Yonkers, appellant pro se.

Gregory J. Allen, State Insurance Fund, New York City (Kelly A. O'Neill of counsel),

909 N.Y.S.2d 168

for Fabco Enterprises and another, respondents.

Before: MERCURE, J.P., ROSE, MALONE JR., KAVANAGH and STEIN, JJ.

MALONE JR., J.

77 A.D.3d 1028

Appeal from a decision of the Workers'

77 A.D.3d 1029

Compensation Board, filed March 30, 2009, which ruled that claimant did not sustain an accident in the course of her employment and denied her claim for workers' compensation benefits.

Claimant applied for workers' compensation benefits in February 2008, alleging that she sustained work-related back injuries in June 2007. Following a hearing, a Workers' Compensation Law Judge credited claimant's testimony that a compensable accident occurred and awarded workers' compensation benefits. Upon review, the Workers' Compensation Board reversed and disallowed the claim. Claimant appeals and we affirm.

Whether a compensable accident occurred presents a question of fact for the Board, and the resolution thereof will be upheld if supported by substantial evidence ( see Matter of Person v. Li Maintenance Ad, 66 A.D.3d 1063, 1063-1064, 886 N.Y.S.2d 512 [2009], lv. denied 14 N.Y.3d 708, 2010 WL 1708013 [2010]; Matter of Neville v. Jaber, 46 A.D.3d 1137, 1138, 848 N.Y.S.2d 411 [2007] ). Claimant, a manager at a shoe store, testified that she was injured when she failed to navigate between a shoe display and a large box and she fell into the box. According to claimant, she missed one week of work as a result of her injury. While she asserted that other store employees became aware of her fall immediately after it occurred, two of those employees testified that they had no recollection of the event. Claimant also testified to calling an individual at the employer's office shortly after the alleged accident, but that individual denied receiving the call. Indeed, claimant's employment records indicate that she did not miss any work but, rather, worked for several days after the alleged accident, and the incident is not referred to in either her resignation letter to the employer or contemporaneous medical records. Inasmuch as the Board is vested with broad authority to...