Claim of Trama v. Gardiene , 117 N.Y.S.2d 807 ( 1952 )

Appeal from decision and award of the Workmen’s Compensation Board. Claimant is an upholsterer. The employer repairs antiques. On February 17, 1950, claimant testified that a divan on which he was working slipped off wooden horses and “fell on top” of him striking his right hip. Claimant was alone at the time of the accident he described, and no one else witnessed it. He further testified he continued to work in “terrible pain” and went home to bed. Five days later while trying to get to a door in the house to get help he fell and was unable to move. In this fall he suffered a fracture of the hip, and the board has found that the second fall and consequential injury are related to the original accident in employer’s shop described by claimant. Appellant argues that there is no credible or substantial evidence to support a finding that the injuries arose out of or in the course of employment, but the board was free to find in this record that claimant was injured in the way he described. A physician, on the basis of a history given, felt claimant had suffered a sacroiliac sprain. The physician was not able to demonstrate this by his actual examination because at the time he examined claimant there was a fracture of the hip. The entire case, therefore, both original accident and the original injury hang on the credibility of claimant. If this be accepted by the board there is proof tending to associate the second injury with the first. We are not able to treat claimant’s version of events as incredible as a matter of law. The board accepted them and in a case like this we are bound to affirm. Decision and award affirmed, with costs to the Workmen’s Compensation Board. Foster, P. J., Brewster, Bergan and Halpem, JJ., concur.