Claim of Walter v. Ed Walters, Inc.

Memorandum by the Court. Appeal from a decision of the Workmen’s Compensation Board reversing the decision and award of the Referee and dismissing the claim. The question to be determined is whether the claimant sustained an injury arising out of and in the course of the employment. The board, in its decision, held as follows: The Board finds on the credible evidence that it does not believe the claimant’s allegations as to the events leading to the injury. The Board finds that the claimant deviated from the employment and was engaged in a purely personal activity at the time of the injury which was unconnected with the employment. The Board finds the claimant did not sustain an accidental injury arising out of and in the course of the employment.” The record indicates such flagrant contradictions in the testimony of claimant’s witnesses as to amply support the board’s finding. “ The board has power to accept or reject testimony and it has seen fit to find the testimony in this record incredible. It was within the board’s province to reject the claimant’s testimony as to the alleged business appointment.” (Matter of Gordon v. Gordon & Hyman, 11 A D 2d 833.) Decision affirmed, with costs to respondent carrier. Gibson, P. J., Herlihy, Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.