                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 19, 2017                   521272
________________________________

In the Matter of the Claim of
   LORRAINE QUIGLEY,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
CONCERN FOR INDEPENDENT LIVING
   et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   December 13, 2016

Before:   Peters, P.J., Garry, Rose, Devine and Mulvey, JJ.

                             __________


      Cherry, Edson & Kelly, LLP, Carle Place (David W. Faber of
counsel), for appellants.

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

                             __________


Mulvey, J.

      Appeal from a decision of the Workers' Compensation Board,
filed September 8, 2014, which ruled that claimant sustained a
work-related injury and awarded her workers' compensation
benefits.

      Claimant sustained injuries to her left arm and wrist when
she fell at work. She applied for workers' compensation benefits
and, following a hearing, a Workers' Compensation Law Judge found
                              -2-                521272

that claimant sustained a work-related injury and awarded
benefits. The Workers' Compensation Board affirmed that
decision, with one panel member dissenting. The employer and its
workers' compensation carrier (hereinafter collectively referred
to as the employer) sought full Board review and, following its
review, the full Board affirmed. The employer 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] [citations omitted]; accord Matter of
Worthington v Samaritan Med. Ctr., 124 AD3d 1155, 1155-1156
[2015]). Moreover, there is a presumption that an accident that
occurs in the course of employment also arises out of that
employment, unless there is substantial evidence to the contrary
(see Workers' Compensation Law § 21 [1]; Matter of Hyatt v
Holliswood Care Ctr., 141 AD3d 908, 909 [2016]; Matter of
Enriquez v Home Lawn Care & Landscaping, Inc., 77 AD3d 1149, 1151
[2010]).

      Here, it is undisputed that claimant's unwitnessed accident
occurred in the course of her employment. Claimant testified
that she was walking down a hallway at work when she fell. The
employer argues, however, that the accident did not arise out of
claimant's employment, but was due to an idiopathic condition.
In support, the employer relies on a notation by an emergency
room physician made on the day of the fall that indicates that
claimant provided a history that included the fact that she uses
a cane due to a balance problem. The employer also relies on the
fact that claimant could not identify any cause attributable to
her employment for the fall, and that she informed an emergency
room nurse that she lost her balance and fell.

      Claimant testified that she uses a cane and that it was
recommended by her orthopedist due to an arthritic condition in
her knee. Claimant further testified that she was not having any
problems with her knee at the time of the fall. Although she
informed one of her treating nurses that she lost her balance and
fell, she informed another nurse that she lost her footing and
fell, and claimant testified she could not recall what
                              -3-                  521272

information she had given hospital staff concerning her fall.
Physical therapy assessment forms prepared at the hospital in the
days following her fall indicate that claimant was using a cane
and walking in a slow and steady gait with no loss of balance or
unsteadiness. The Board credited claimant's testimony that she
did not know the cause of her fall, and found that her statements
to the hospital staff that she had lost her balance or her
footing were merely descriptions of a fall in general and were
not proof that her fall was unrelated to her employment.
According deference to the Board's credibility determinations and
assessment of the record evidence (see Matter of Roman v
Manhattan & Bronx Surface Tr. Operating Auth., 139 AD3d 1304,
1306 [2016]; Matter of Hernandez v Vogel's Collision Serv., 48
AD3d 861, 861 [2008]), and given that there are no medical
opinions in the record connecting claimant's fall to any
idiopathic reasons, substantial evidence supports the Board's
decision that the employer failed to rebut the statutory
presumption and it will not be disturbed (see Matter of
Worthington v Samaritan Med. Ctr., 124 AD3d at 1156).

     Peters, P.J., Garry, Rose and Devine, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
