Opinion
April 28, 1958
Present — Foster, P.J., Bergan, Gibson, Herlihy and Reynolds, JJ.
This is an appeal by the claimant, Thomas Musto, from a decision of the Workmen's Compensation Board, dated September 19, 1955 reversing a prior decision of the referee, dated May 25, 1954 disallowing the claim on the grounds that claimant did not sustain an accident arising out of and in the course of his employment. The accident is supposed to have happened on April 2, 1953, while the claimant, a painter, was working for his employer, Vincent Sanzone. The employer produced his payroll records to show the claimant was not working on the day in question. The manner in which the accident, if any, happened, is described differently. Claimant admits that he asked his employer to say that he fell off a defective ladder belonging to owner so that he could bring a suit against the owner. At one time, April 9, claimant told his employer he suffered from a "charley horse". His first claim for compensation was dated May 27, 1953. With reference to the medical testimony, he admitted his back was first injured in 1946. He admitted to an automobile accident in 1949 but said he made no claim for hurting or injuring his back. Dr. James H. Kidder testified he examined the claimant for injuries as a result of the accident and that he claimed back pain and disability. These are just a few of the controversial matters with which the record redounds, and the whole matter in controversy became a question of credibility as to all phases of the claim of Musto and the board decided against him. There is no basis for this court to do anything but affirm. As was said in Matter of Jelfo v. Modello Son ( 3 A.D.2d 782): "Credibility is solely within the province of the board." Decision unanimously affirmed, without costs.