Opinion
February 26, 1954.
Appeal from Workmen's Compensation Board.
Claimant was employed as a waitress at the employer's summer hotel at Loon Lake and lived on the premises in which she was provided a room. She was accompanied by her dog — a terrier with some spitz. The dog slept in the room, sometimes in claimant's bed.
During the night she was awakened "with what I thought was a broken nose. * * * I felt a stinging sensation. The room and the bed was covered with blood". Claimant told a fellow employee that when she awoke the dog jumped off the bed and barked and ran to the door.
A physician who was promptly consulted found an extensive deep laceration of the nose which he treated. There had been extensive bleeding. Claimant testified that after the incident she thought her dog had bitten her and told the physician the dog had bitten her. Later she felt some unknown assailant, mistaking her for someone else, must have caused the injury.
The physician thought that it was "unlikely" that a dog bite had caused the injury. But there is no proof of an assault by anyone or the identity of an assailant or that anyone was in claimant's room.
Claimant testified she kept the dog in the room with the permission of the employer; but the employer's testimony, which the board was free to credit, is that keeping the dog in the room was in violation of the rules of the hotel.
On the facts the board found that claimant did not sustain an industrial accident. Where the record is open to divergent inferences from which it could be found either that the injury was due to some cause personal to claimant and unconnected with employment or that it was not fairly established on the whole record that it arose from the employment, the court is without power to interfere on the ground the decision has no substantial evidence to support it.
The decision should be affirmed, without costs.
Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ., concur.
Decision affirmed, without costs.