                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 30, 2016                     521437
________________________________

In the Matter of the Claim of
   BRENDA HILL,
                    Appellant,
      v

SHOPRITE SUPERMARKETS INC.                  MEMORANDUM AND ORDER
   et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   June 3, 2016

Before:   Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.

                             __________


      The Law Firm of Alex Dell, Albany (Courtney E. Holbrook of
counsel), for appellant.

      Walsh & Hacker, Albany (Kelly B. Dean of counsel), for
Shoprite Supermarkets Inc. and another, respondents.

                             __________


Egan Jr., J.

      Appeal from a decision of the Workers' Compensation Board,
filed September 30, 2014, which ruled that claimant did not
sustain a compensable injury and denied her claim for workers'
compensation benefits.

      Claimant, a supermarket deli clerk, applied for workers'
compensation benefits in September 2013 alleging that she had
injured her back when she slipped on a grease trap and fell to
the floor. The employer and its workers' compensation carrier
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(hereinafter collectively referred to as the employer)
controverted the claim, and, following a hearing, a Workers'
Compensation Law Judge disallowed the claim. Concluding that the
employer had rebutted the presumption under Workers' Compensation
Law § 21, the Workers' Compensation Law Judge found that claimant
was not credible and that she had failed to establish by
competent medical evidence a causal relationship between her
medical condition and her employment. Upon administrative
review, the Workers' Compensation Board agreed, prompting this
appeal by claimant.

      We affirm. "'Whether a compensable accident has occurred
presents a question of fact for resolution by the Board and its
decision will be upheld when supported by substantial evidence'"
(Matter of Siennikov v Professional Grade Constr., Inc., 137 AD3d
1440, 1441 [2016], quoting Matter of Losardo v Baxter Healthcare
Corp., 126 AD3d 1164, 1165 [2015]; accord Matter of Dixon v Almar
Plumbing, 111 AD3d 1230, 1231 [2013]). Here, when claimant filed
her claim, she provided no information regarding when she first
sought and received treatment for her alleged injury and reported
the accident date as June 26, 2013 – despite having reported the
date of her injury to her treating physician as July 28, 2013.
Claimant's testimony also reflected her uncertainty regarding the
name of the manager to whom she reported the alleged accident.
Moreover, although claimant denied having received prior
treatment for – or injuries to – her back, claimant's treating
physician testified that he previously had treated claimant in
2010 for pain in her lower back and one of her legs following her
involvement in a motor vehicle accident. The physician also
acknowledged that he had not performed any diagnostic tests on
claimant for her alleged injuries and that he could not yet
determine whether claimant's symptoms were degenerative in nature
or due to an acute injury from trauma. In view of the foregoing
evidence and according deference to the Board as "the sole
arbiter of witness credibility" (Matter of Dixon v Almar
Plumbing, 111 AD3d at 1231 [internal quotation marks and
citations omitted]), the Board was entitled to reject claimant's
testimony and proof, draw reasonable inferences from the
conflicting evidence and conclude that no work-related accident
had occurred – a finding that is supported by substantial
evidence (see Matter of Siennikov v Professional Grade Constr.,
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Inc., 137 AD3d at 1443; Matter of Losardo v Baxter Healthcare
Corp., 126 AD3d at 1165; Matter of Rolleri v Mastic Beach
Ambulance Co., Inc., 106 AD3d 1292, 1292-1293 [2013], lv denied
21 NY3d 865 [2013]).

      Finally, contrary to claimant's contention, Workers'
Compensation Law § 21, "which affords a presumption that an
unwitnessed or unexplained workplace accident arose out of the
injured person's employment, . . . cannot be utilized to
demonstrate that an accident occurred in the first place" (Matter
of Dixon v Almar Plumbing, 111 AD3d at 1231 n 1 [internal
quotation marks and citation omitted]; accord Matter of Siennikov
v Professional Grade Constr., Inc., 137 AD3d at 1443).

     Peters, P.J., Lahtinen, Rose and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
