In re the Claim of D'Amore v. Town of Hempstead

Appellate Division of the Supreme Court of New York

In re the Claim of D'Amore v. Town of Hempstead

80 A.D.2d 686, 436 N.Y.S.2d 435, 1981 N.Y. App. Div. LEXIS 10389

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 12, 1981

StatusPublished

Cited by1 cases

This text of 80 A.D.2d 686 (In re the Claim of D'Amore v. Town of Hempstead) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Claim of D'Amore v. Town of Hempstead, 80 A.D.2d 686, 436 N.Y.S.2d 435, 1981 N.Y. App. Div. LEXIS 10389 (N.Y. Ct. App. 1981).

Pincite

Opinion

Appeal from a decision of the Workers’ Compensation Board, filed December 13, 1979. Concededly, claimant was injured while .in the course of his employment in installing a new heater. Subsequent thereto, his right great toe became ulcerated requiring amputation and thereafter gangrene developed in the right leg, which also had to be amputated. The issues raised on this appeal revolve around the fact that immediately after the accident and when claimant first received medical treatment he failed to report any injury to his toe, but only to his head. The board found: “based on the credible testimony of the claimant and the reports and testimony of Dr. Grauer and the report of Dr. Ahmad, that the claimant was struck on the head at work on 1/19/78 by a falling wall heater and struck his right big toe and leg against some studs when he fell causing an ulceration of the right great toe and subsequent amputation of the right great toe and amputation of the [687]*687right leg at thigh level”. Claimant testified in describing the accident “My leg and my toe both hit the wall” and “I cut my toe and leg at the same time.” Dr. Ahmad’s report stated that claimant said that in falling, after being hit on the head by a falling heater, his right big toe was cut. Another witness testified that on the day of the accident claimant complained to him about his leg and head hurting and showed him the cut on the toe. Dr. Grauer testified that the amputation of the claimant’s leg was necessitated by his accidental leg and toe injury. Questions of credibility are strictly within the province of the board (Matter of Smith v Shady Lawn Home for Adults, 67 AD2d 1069). Considering the record in its entirety, we are of the view that there is substantial evidence to sustain the board’s determination and, therefore, it should be affirmed. Decision affirmed, with costs to the Workers’ Compensation Board. Mahoney, P.J., Sweeney, Kane, Casey and Mikoll, JJ., concur.

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Appeal from a decision of the Workers’ Compensation Board, filed December 13, 1979. Concededly, claimant was injured while .in the course of his employment in installing a new heater. Subsequent thereto, his right great toe became ulcerated requiring amputation and thereafter gangrene developed in the right leg, which also had to be amputated. The issues raised on this appeal revolve around the fact that immediately after the accident and when claimant first received medical treatment he failed to report any injury to his toe, but only to his head. The board found: “based on the credible testimony of the claimant and the reports and testimony of Dr. Grauer and the report of Dr. Ahmad, that the claimant was struck on the head at work on 1/19/78 by a falling wall heater and struck his right big toe and leg against some studs when he fell causing an ulceration of the right great toe and subsequent amputation of the right great toe and amputation of the [687]*687right leg at thigh level”. Claimant testified in describing the accident “My leg and my toe both hit the wall” and “I cut my toe and leg at the same time.” Dr. Ahmad’s report stated that claimant said that in falling, after being hit on the head by a falling heater, his right big toe was cut. Another witness testified that on the day of the accident claimant complained to him about his leg and head hurting and showed him the cut on the toe. Dr. Grauer testified that the amputation of the claimant’s leg was necessitated by his accidental leg and toe injury. Questions of credibility are strictly within the province of the board (Matter of Smith v Shady Lawn Home for Adults, 67 AD2d 1069). Considering the record in its entirety, we are of the view that there is substantial evidence to sustain the board’s determination and, therefore, it should be affirmed. Decision affirmed, with costs to the Workers’ Compensation Board. Mahoney, P.J., Sweeney, Kane, Casey and Mikoll, JJ., concur.

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80 A.D.2d 686, 436 N.Y.S.2d 435, 1981 N.Y. App. Div. LEXIS 10389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-damore-v-town-of-hempstead-nyappdiv-1981.

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