Levinson v. State , 5 A.D.2d 1041 ( 1958 )

Appeal from a decision of the Workmen’s Compensation Board which disallowed a claim for compensation on the ground that the evidence did not indicate that claimant sustained an accident arising out of and in the course of his employment. Claimant was employed as a sales representative by the employer which was engaged in the business of manufacturing paints. On April 25, 1954 he went to Boston and engaged a room at the Sheraton Park Hotel. Upon his arrival there he consulted a physician who gave him some sedation to alleviate a nervous condition. On Monday, which was the following day, he made some business calls but on Tuesday there is no indication in the record that he did any work whatever. At 6:00 p.m. on Tuesday he was found on the floor in his room attired in his pajamas. On the following morning he was again found on the floor and removed to a hospital where it was found that he had a fracture of his left leg. There is evidence that he suffered from a disturbed mental condition, and he himself said that he did not know what happened to him. There is some medical testimony to the effect that he suffered from a toxic psychosis due to the use of a barbiturate known as sodium butyisol.' This was the sedative drug which was prescribed for claimant to alleviate his nervous condition when he arrived in Boston on April 25. It seems a fair inference that claimant must have slipped and fallen in his room to sustain the fracture of his left hip which was later found, but if this fall was caused by the use of a drug the accident can scarcely be said to have arisen out of and in the course of his employment. In view of the testimony cited and the record as a whole this issue was well within the fact-finding power of the 'board. We find no impelling reason to disturb the decision of the board as a matter of law. Decision unanimously affirmed, without costs.

Present — Foster, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.