                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 25, 2016                   522125
________________________________

In the Matter of PAULA OATHOUT,
                    Respondent,
      v

AVERILL PARK CENTRAL SCHOOLS                MEMORANDUM AND ORDER
   et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   August 18, 2016

Before:   Garry, J.P., Egan Jr., Devine, Mulvey and Aarons, JJ.

                             __________


      Lemire, Johnson & Higgins, LLC, Malta (George B. Burke III
of counsel), for appellants.

      Sullivan Keenan Oliver & Violando, LLP, Albany (Michael D.
Violando of counsel), for Paula Oathout, respondent.

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

                             __________


Devine, J.

      Appeals (1) from a decision of the Workers' Compensation
Board, filed February 11, 2015, which ruled that claimant
sustained a compensable injury, and (2) from a decision of said
Board, filed June 3, 2015, which denied a request by the employer
and its workers' compensation carrier for reconsideration and/or
full Board review.
                              -2-                522125


      Claimant, a custodial worker, was walking down a school
hallway when she heard a pop in her right foot and felt a sharp
pain. She was thereafter diagnosed with a fourth and fifth
metatarsal fracture and applied for workers' compensation
benefits. The self-insured employer and its third-party
administrator (hereinafter collectively referred to as the
employer) controverted the claim and, following a hearing, a
Workers' Compensation Law Judge found that claimant sustained a
work-related injury and awarded benefits. Upon review, the
Workers' Compensation Board affirmed. The employer's subsequent
request for reconsideration and/or full Board review was denied
and these appeals ensued.1

      We affirm. "Whether a compensable accident has occurred
presents a question of fact for resolution of the Board and its
decision will be upheld when supported by substantial evidence"
(Matter of Rolleri v Mastic Beach Ambulance Co., Inc., 106 AD3d
1292, 1292 [2013] [citations omitted], lv denied 21 NY3d 865
[2013]; see Matter of Worthington v Samaritan Med. Ctr., 124 AD3d
1155, 1155-1156 [2015]). Moreover, "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 Zobel v Chemung County, 136 AD3d 1140, 1140-1141
[2016], lv denied 27 NY3d 907 [2016]; see Workers' Compensation
Law § 21 [1]).

      The Board credited claimant's testimony that she had just
finished cleaning the school gymnasium and was walking down a
hallway with a coworker when she felt the sharp pain in her foot,
giving rise to the statutory presumption (see Matter of
Cartwright v Onondaga News Agency, 283 AD2d 837, 837-838 [2001]).
The employer argues that the statutory presumption was rebutted
by proof that the injury stemmed not from an accident associated


    1
        The employer raises no arguments in its brief regarding
the Board's June 2015 denial of reconsideration and/or full Board
review and, therefore, we deem the appeal from that decision to
be abandoned (see Matter of Siennikov v Professional Grade
Constr., Inc., 137 AD3d 1440, 1441 n 1 [2016]).
                              -3-                  522125

with her job duties, but rather was an idiopathic condition,
namely, claimant's congenital metatarsus adductus. In that
regard, although her treating physician opined that the fractures
"may be partially [due] to her metatarsus adductus" (emphasis
added), the employer's medical expert performed an independent
examination on claimant and was unable to draw a direct
connection between claimant's condition and the injury. Thus,
according deference to the Board's resolution of credibility
issues, substantial evidence supports the determination that the
injuries arose out of and in the course of claimant's employment
(see Matter of Worthington v Samaritan Med. Ctr., 124 AD3d at
1156; Matter of Cartwright v Onondaga News Agency, 283 AD2d at
837-838).

      The employer's remaining contention has been examined and
found to be lacking in merit.

     Garry, J.P., Egan Jr., Mulvey and Aarons, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
