Claim of Burlingame v. Barden & Robeson Corp.

Appeal from a decision of the Workmen’s Compensation Board, filed June 12, 1975. The sole issue to be determined on this appeal is whether claimant sustained an injury arising out of and in the course of the employment. The board concluded that it "finds based on probative and credible testimony that claimant did not sustain an accidental injury arising out of and in the course of employment.” The record reveals that claimant, age 59, was employed by respondent as a yardman; that he had been a diabetic since 1966. Claimant testified that on August 2, 1973 a "header beam” fell and injured his right foot; that he continued to work the remainder of the day; that he filed a written report of the accident with the 970 superintendent on August 4, 1973; that he also reported the accident to his foreman. Much of claimant’s testimony pertaining to the accident was corroboratéd by a coemployee. Claimant’s right leg was amputated above the knee on September 27, 1973. Claimant’s testimony about the reporting of the accident and subsequent lost time was contradicted by the superintendent, foreman and time cards. The questions of fact and credibility were solely within the province of the trier of fact (Matter of Walter v Ed Walters, Inc., 26 AD2d 870). Since the board implicitly resolved the disputed testimony against claimant, we may not interfere with its fact-finding power (Matter of Putnam v New York State Dept, of Public Works, 24 AD2d 801). Decision affirmed, without costs. Koreman, P. J., Greenblott, Sweeney, Ma-honey and Herlihy, JJ., concur.'