Sinozko v. Morse Chain Co.

34 A.D.2d 1054, 312 N.Y.S.2d 58, 1970 N.Y. App. Div. LEXIS 4353

Opinion

Cooke, J.

Appeal from a decision of the Workmen’s Compensation Board, filed December 12, 1968, which disallowed a claim for compensation under the Workmen’s Compensation Law. In view of claimant’s account concerning the striking of her elbow, the proof of her failure to notify the foremen of the blow to said joint and her omission to include same initially to an orthopedic consultant as part of the medical history, as well as evidence concerning the side of the elbow involved, the question of whether claimant in fact had sustained an accidental injury to the right elbow was one of fact for the board (Matter of Giocastro v. New York City Tr. Auth., 24 A D 2d 679; Matter of Zruk v. Forest Mills Eosp., 14 A D 2d 952). The selection by the board, as between the conflicting opinions of the orthopedist and the neurosurgeon on the subject of causal relationship, was also an exercise of its fact-finding power, it not being this court’s function to determine which is the more persuasive (Matter of Palermo v. Gallucei <& Sons, 5 N Y 2d 529, 532-533). Decision affirmed, without costs. Herlihy, P. J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Cooke, J.