In the Matter of the Claim of Gussie Rosenthal, Appellant, v. Jac Sportswear et al., Respondents. Workmen's Compensation Board, Respondent, 20 A.D.2d 734

Appeal by claimant from a decision of the Workmen’s Compensation Board denying death benefits on the ground that decedent did not sustain an accidental injury arising out of and in the course of employment. Decedent, a foreman in a men’s shirt factory, died from a myocardial infarction on June 19, 1957. Two years later in June, 1959 a claim of accidental injury was filed alleging an “unusual exertion and severe emotional upset” on June 18, 1957, the day preceding decedent’s demise. The emotional upset was supposed to have emanated from an alleged argument.

The testimony of claimant’s witnesses as to the event was contradictory and suspect. The testimony of the witness Sam Slovin was impeached. The board was faced with grave questions of credibility, and with the evaluation of the following factual issues. First, whether there was an argument of any nature and, second, if there was, the nature and extent thereof.

The board has found that the evidence failed to establish an accidental injury arising out of and in the course of employment; that there is no credible or substantial evidence that the argument involved or induced emotional strain greater than the irritations to which all workers are subjected without untoward result; and finally that there was no accidental injury in the common-sense viewpoint of the average man. These evaluations are within the exclusive province of the board (Matter of Duncan v. Trans-World Airlines, 19 A D 2d 666; Matter of Rothschild v. Flatbush Jewish Center, 18 A D 2d 1045).

On a review of all of the evidence in the record, we feel that the board with its duty to pass upon the credibility of the witnesses and to weigh the facts, properly interpreted and evaluated the testimony and was well within its fact-finding power in reaching the decision rendered. Decision affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.