                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 28, 2016                    520961
________________________________

In the Matter of GAVIN ELLIS,
                    Claimant,
      v

FRITO LAY INC. et al.,                      MEMORANDUM AND ORDER
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   March 21, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


      Morrison Mahoney LLP, New York City (Jacqulyn N. Simmons of
counsel), New York City, for appellants.

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

                             __________


Egan Jr., J.

      Appeal from a decision of the Workers' Compensation Board,
filed July 7, 2014, which ruled that claimant sustained a work-
related injury and awarded him workers' compensation benefits.

      Claimant, a warehouse worker, was unloading a trailer by
himself when he fell down some stairs and injured his back and
neck. He subsequently applied for workers' compensation
benefits. Following a hearing, a Workers' Compensation Law Judge
found that claimant had sustained a work-related injury and
awarded benefits. The Workers' Compensation Board affirmed that
                               -2-                520961

decision, and this appeal ensued.

      We affirm. Initially, although there is a presumption that
an unwitnessed workplace accident arose out of the course of the
claimant's employment pursuant to Workers' Compensation Law § 21
(1), the Board correctly noted in its decision that the
presumption cannot be used to establish that an accident actually
occurred (see Matter of Neville v Jaber, 46 AD3d 1137, 1138
[2007]; Matter of Santiago v Otisville Correctional Facility, 39
AD3d 1109, 1110 [2007]). Rather, such a determination is a
factual question for the Board to resolve, and its determination
will not be disturbed if supported by substantial evidence (see
Matter of Hopkins v Emcor Group, Inc., 130 AD3d 1114, 1114
[2015]; Matter of Gardner v Nurzia Constr. Corp., 63 AD3d 1385,
1386 [2009]). Here, claimant testified that he slipped while
walking down some stairs to check a trailer. According to
claimant, the stairs had a coating of snow on them, and he
injured his back and neck as a result of the fall. Claimant
immediately used his cell phone to notify his supervisor, who was
in an office on the premises, and to later call an ambulance. In
contrast, the employer presented evidence supporting its
contention that claimant fabricated his claim in light of an
impending disciplinary action against him and in retaliation for
the denial of his request to leave early on the day of the
accident. Claimant's supervisor also presented testimony that
contradicted certain aspects of claimant's account of the
accident and the hours following the accident. Inasmuch as "the
Board has broad authority to make credibility determinations and
to draw reasonable inferences from record evidence" (Matter of
Klamka v Consolidated Edison Co. of N.Y., Inc., 84 AD3d 1527,
1528 [2011]; see Matter of Cicciarelli v Westchester Health Care
Corp., 86 AD3d 733, 734 [2011]), its finding that claimant
established that a workplace accident had occurred is supported
by substantial evidence.1



     1
        While its decision is somewhat unclear, we are satisfied
that the Board properly undertook the inquiry into whether
claimant demonstrated that an accident had occurred without
relying on the statutory presumption.
                              -3-                  520961

      As such, it is presumed that the accident and injury arose
out of claimant's employment, and the employer may overcome the
presumption of compensability by presenting substantial evidence
to the contrary (see Matter of Stevenson v Yellow Roadway Corp.,
114 AD3d 1057, 1059 [2014]; Matter of Richman v NYS Unified Ct.
Sys., 91 AD3d 1014, 1015 [2012], lv denied 19 NY3d 811 [2012]).
To that end, the employer relied on written reports from its
fitness instructor indicating that claimant had reported
suffering from discomfort in his lower back "on and off for
years" to argue that he had a preexisting condition. Notably,
however, the record also contains the medical reports of
claimant's treating physician, claimant's chiropractor and a
physician who performed an independent medical examination on
claimant. All three found claimant to be temporarily totally
disabled from performing the duties of a warehouse worker and
concluded that his condition was causally related to his
employment. In light of the foregoing, we will not disturb the
Board's determination that the employer's evidence was
insufficient to rebut the statutory presumption. The employer's
remaining claims have been considered and found to be without
merit.

     Garry, J.P., Lynch, Devine and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
