Claim of Booñe v. Orange Steel Erectors, Inc. , 711 N.Y.S.2d 355 ( 2000 )

Cardona, P. J.

Appeal from an amended decision of the Workers’ Compensation Board, filed October 7, 1998, which ruled that claimant sustained an accidental injury in the course of his employment and awarded workers’ compensation benefits.

Claimant allegedly injured his back while working as an iron worker for the employer. He filed a claim for workers’ compensation benefits and, following a hearing, a Workers’ Compensation Law Judge found, inter alia, that claimant sustained an accidental injury to his back on May 6, 1996. On appeal, the Workers’ Compensation Board affirmed that decision. Upon further review, the Board issued an amended decision which, inter alia, rescinded that portion of the Workers’ Compensation Law Judge’s decision establishing May 6, 1996 as the date of the accident and ruled that claimant sustained the injury on May 7, 1996. This appeal by the employer and its workers’ compensation insurance carrier (hereinafter collectively referred to as the employer) ensued.

In his claim for workers’ compensation benefits, claimant indicated that his injury occurred on May 6, 1996 while lifting iron at a project located in the Village of Pawling, Dutchess County. At the hearing, however, he testified that his injury occurred on May 7, 1996 at the Pawling project while he was working with another employee, David Dickinson, erecting a staircase. He stated that he was in the process of lifting a heavy piece of steel when he felt his lower back “give” and experienced pain resulting in a lower back injury. The medical reports admitted into evidence failed to provide detail concerning the circumstances of the accident; however, the hospital admission report, dated May 13, 1996, indicated that claimant sustained the injury to his back six days earlier.

Claimant’s supervisor, Theodore Smith, testified that he worked with claimant installing a staircase at the Pawling project on May 3, 1996 and claimant did not complain of any injury to his back. In addition, he stated that he worked with claimant on May 7, 1996 at a project at Dominican College which did not entail erecting stairs. Smith related that he also worked with claimant on May 6, 1996 at the Dominican College project but, when it rained, they went to an indoor project at Bar Laboratories which, like the Pawling project, entailed erecting a staircase. He stated that claimant did not complain of problems lifting. Dickinson indicated that he worked with claimant on May 6, 1996 installing a stairway at Bar Laboratories and claimant did not complain of a back injury. Contrary to claimant’s testimony, Dickinson stated that he did not work with claimant at the Pawling project.

In its decision, the Board found “the claimant’s testimony to be credible, and that either the accident occurred as he described on May 7, 1996, or that the foremen were correct that the claimant’s work that day did not entail working on a set of stairs on a roof in Pawling, New York.” The Board further noted that “[i]f the latter is correct, we find that the claimant’s testimony is nonetheless credible that he suffered an accident working for the employer on May 7, 1996, and that he was honestly confused between the work he was doing on that date and the work he had done a few days earlier.” In our view, the Board’s decision cannot be affirmed. Considering the proof in this record and the Board’s amended decision, it is not clear how claimant injured himself, the date of the occurrence or at what job site. If claimant’s injury did not occur as he described, which the Board acknowledges is a possibility, then there is insufficient evidence in this record establishing how the injury occurred. Since the issue at hand concerns whether claimant sustained an accidental injury in the course of his employment, we find a lack of substantial evidence to support the Board’s decision (see, e.g., Matter of Bashwinger v Cath-Fran Constr. Co., 200 AD2d 791, lv denied 83 NY2d 757; Matter of Farnan v New York State Dept. of Social Servs., 187 AD2d 864). While we are cognizant of the deference to be accorded the Board’s assessment of witness credibility, we cannot adhere to the dissent’s view that substantial evidence supports the Board’s decision herein absent more compelling proof that claimant was, in fact, injured while performing work for the employer. In view of our disposition, we need not address the employer’s remaining claims.

Mercure, Graffeo and Mugglin, JJ., concur.