SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
June 27, 1968
IN THE MATTER OF THE CLAIM OF MEYER GUBKIN, RESPONDENT,
SUPERMARKET OPERATING COMPANY ET AL., APPELLANTS. WORKMEN'S COMPENSATION BOARD, RESPONDENT
Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board awarding compensation benefits to the claimant. The board upon application of the claimant twice reversed decisions of the Referee in favor of the appellants. Upon the entry of an award by the Referee the carrier sought board review by an application dated July 27, 1967 upon the same grounds set forth in its reply letter dated June 14, 1966 and the previous oral argument before the board panel. The sole issue raised in the letter dated June 14, 1966 and the subsequent oral argument was the credibility of the claimant. Accordingly, the contention presented here as to the medical evidence is improperly raised. In any event in our view causal relationship was shown. As to whether or not the claimant had moved some heavy cases of meat prior to his heart attack, the basic issue was one of the claimant's credibility and we find the board's determination in favor of the claimant supported by substantial evidence in the record.
Decision affirmed, with costs to the Workmen's Compensation Board.
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