                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 2, 2015                      519583
________________________________

In the Matter of the Claim of
   CORY W. HOPKINS,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
EMCOR GROUP, INC., et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   June 1, 2015

Before:   Lahtinen, J.P., Lynch, Devine and Clark, JJ.

                             __________


      Buckner & Kourofsky, LLP, Rochester (Matthew T. Austin of
counsel), for appellants.

      Connors & Ferris, LLP, Rochester (Alexander Osborne of
counsel), for Cory W. Hopkins, respondent.

      Eric T. Schneiderman, Attorney General, New York City
(Donya Fernandez of counsel), for Workers' Compensation Board,
respondent.

                             __________


Lynch, J.

      Appeal from a decision of the Workers' Compensation Board,
filed December 26, 2013, which ruled that claimant's accidental
injury arose out of and in the course of his employment.

      Claimant suffered serious injuries after he fell from a
scissors lift and struck his head on the floor while repairing
                              -2-                519583

copper piping at his job site. His claim for workers'
compensation benefits was controverted by the employer and its
workers' compensation carrier (hereinafter collectively referred
to as the carrier). Following a hearing, a Workers' Compensation
Law Judge determined that claimant sustained a work-related
injury. The Workers' Compensation Board affirmed that decision
and the carrier now appeals.

      We affirm. "Whether a compensable accident has occurred is
a question of fact to be resolved by the Board and its
determination will not be disturbed when supported by substantial
evidence" (Matter of Cicciarelli v Westchester Health Care Corp.,
86 AD3d 733, 734 [2011] [citation omitted]; accord Matter of
Worthington v Samaritan Med. Ctr., 124 AD3d 1155, 1155-1156
[2015]). "Furthermore, absent substantial evidence to the
contrary, a presumption exists that an accident that occurs in
the course of employment arises out of that employment" (Matter
of Worthington v Samaritan Med. Ctr., 124 AD3d at 1156 [citation
omitted]; see Workers' Compensation Law § 21 [1]; Matter of
Enriquez v Home Lawn Care & Landscaping, Inc., 77 AD3d 1149, 1151
[2010]).

      Here, there is no dispute that claimant's injury occurred
during the course of his employment. Claimant testified that he
recalled getting his feet tangled in some hoses attached to an
acetylene torch, losing his balance and yelling out before
falling. The carrier contends, however, that claimant's fall did
not arise out of his employment, but rather resulted from a
seizure induced either by substance abuse withdrawal or alcohol
withdrawal. In support of its contention, the carrier presented
the testimony of neurologist Emma Ciafaloni, who examined
claimant the day after his fall. Ciafaloni could, however, only
testify that, based upon claimant's history, the cause of
claimant's fall was "likely" a seizure caused by substance abuse
withdrawal or alcohol withdrawal, but that there were no
objective tests to determine whether claimant had actually
suffered a seizure before he fell. Further, although
eyewitnesses testified that they believed that claimant had
suffered a seizure before he fell, they admittedly had not
observed claimant prior to him calling out, and they could not
rule out the possibility that he had lost his balance after
                              -3-                  519583

becoming entangled in the hoses. According deference to the
Board's resolution of witness credibility issues, its
determination that the carrier's evidence was speculative and
insufficient to rebut the presumption of compensability pursuant
to Workers' Compensation Law § 21 will not be disturbed (see
Matter of Worthington v Samaritan Med. Ctr., 124 AD3d at 1156;
Matter of Booker v Intermagnetics Gen. Corp., 53 AD3d 743, 744-
745 [2008]).

     Lahtinen, J.P., Devine and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
