Claim of Slavinska v. Tolstoy Foundation Nursing Home

54 A.D.2d 808, 388 N.Y.S.2d 41, 1976 N.Y. App. Div. LEXIS 14501

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1976
• Status: Published

Opinion

Appeals from decisions of the Workmen’s Compensation Board, filed April 10, 1975 and December 12, 1975, which held that claimant sustained an industrial accident resulting in disability for which an award of benefits was made. It is conceded that claimant, a cleaning woman, sustained a bilateral subdural hematoma and that she would be entitled to the compensation benefits awarded if this injury resulted from an industrial accident. The issue in dispute is whether the injury was caused when in March of 1971 she hit her head on a sink as she was cleaning the floor of the employer’s premises or from a subsequent fall from bed and thus not in the course of employment. While the medical testimony and other evidence presented on this issue of causation is in this case contradictory and far from completely satisfactory, there is in the final analysis presented only a conflict of opinion which was for the board’s resolution (e.g., Matter of Palermo v Gallucci & Sons, 5 NY2d 529; Matter of Montini v Marlin-Rockwell Div. of TRW, 50 AD2d 1017). The testimony of Dr. Fiedler, claimant’s expert, cannot be said to lack sufficient probative force to provide substantial evidence to support the board’s determination (e.g., Matter of Benenati v Tin Plate Lithographing Co., 29 AD2d 805). Decisions affirmed, with costs to the Workmen’s Compensation Board. Sweeney, J. P., Main, Larkin, Herlihy and Reynolds, JJ., concur.