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Claim of White v. Dean's Food and Vegetable Co.

Supreme Court of New York, Appellate Division, Third Department


November 15, 2001

IN THE MATTER OF THE CLAIM OF CHRISTOPHER WHITE, RESPONDENT,
v.
DEAN'S FOOD AND VEGETABLE COMPANY ET AL., APPELLANTS. WORKERS' COMPENSATION BOARD, RESPONDENT.

Before: Cardona, P.J., Mercure, Crew III, Carpinello and Lahtinen, JJ.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

(*1)

MEMORANDUM AND ORDER

Calendar Date: October 17, 2001

Appeal from a decision of the Workers' Compensation Board, filed January 19, 2000, which ruled that claimant had given (*2)timely notice of injury.

The Workers' Compensation Board is entitled to assess the credibility of witnesses and "is the sole and final arbiter of whether the testimony of a particular witness is worthy of belief" (Matter of Altman v Hazan Import Corp., 198 AD2d 674). On the issue of whether claimant gave timely notice of the work-related nature of his injury to the employer, claimant's testimony, which is supported by that of his wife, is not replete with inconsistencies in the face of unimpeached testimony of impartial witnesses and, therefore, there is no basis to disturb the Board's decision to credit his testimony (compare, Matter of Jhoda v Mauser Serv., 279 AD2d 853, 854, with Matter of Lewis v Cambridge Filter Corp., 132 AD2d 802, 803, lv denied 71 NY2d 805). The forms upon which the employer and its workers' compensation carrier rely constitute some evidence that the testimony of claimant and his wife was incredible but did not preclude the Board from exercising its authority to determine whether the testimony was worthy of belief (see, Matter of Konstantinakos v Plaza Hotel, 93 AD2d 927, 928).

Cardona, P.J., Mercure, Crew III, Carpinello and Lahtinen, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20011115


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