Case # G0215403
Date of Accident: 01/28/2010
District Office: Albany
Employer: Nash Brothers Oil Distribution
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 64059462-181
Date of Filing of Decision: 04/20/2012
Claimant's Attorney: Dall Vechia & Kraft LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on March 20, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 30, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's back injury arose out of and in the course of his employment.

By decision filed on June 28, 2010, the WCLJ found that the claimant's accident did not arise out of or in the course of his employment and disallowed the claim.

In a memorandum of decision filed on March 30, 2011, the majority found that the WCLJ properly disallowed the claim, as the claimant failed to establish that his injury arose out of and in the course of his employment.

The dissenting Board Panel member would have found that the majority erred in not addressing the dispositive legal issue of "whether the policy permitting employees' use of the van with permission gave rise to a 'frequent and regular practice,'" as framed in Holcomb v Daily News, 45 NY2d 602 (1978). The dissent would have rescinded the WCLJ's decision and remanded the case back to the trial calendar for development of the record on the practice and policy of allowing non on-call employees to use the van for transport to and from work.

In his application for Mandatory Full Board Review, filed with the Board on April 22, 2011, the claimant contends that the WCLJ and the Board Panel majority "erred as a matter of law" by focusing on the issue of whether claimant was on a special errand, and should have instead considered "whether permitting employees to use the vans was a frequent an[d] regular practice or whether the employer derived any benefit through the claimant clocking out early."

In a rebuttal filed with the Board on May 16, 2011, the carrier asserts that the majority opinion is correct as a matter of fact and should be affirmed.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This is a controverted claim for an injury to the claimant's back. On January 28, 2010, the claimant, a service technician, was involved in a motor vehicle accident during his morning commute to the employer's premises.

The facts in the record are largely undisputed.

The claimant testified on June 23, 2010, as follows: At the time of the accident, he had worked for the employer as a service technician for about three months. On January 28, 2010, at around 8:00 a.m., he was involved in a motor vehicle accident during his commute from his home to work. He was on his way to the employer's premises to get his work assignments for that day. He was driving one of the employer's vans when the accident occurred. His job requires him to travel to customers' houses. The employer provided him a company vehicle to use while he worked. In addition to his regular work schedule, there are times when he is required to be on-call. Every couple of nights he would be on-call from the time his shift ended through the beginning of his shift the next day. On nights when he is on-call, he is allowed to take the company vehicle home overnight so that he can answer calls. However, when not on-call, employees are not permitted to take the employer's vehicles home without first receiving permission from the employer.

The claimant worked on January 27, 2010, the day before the accident. However, he was not scheduled to be on-call that night once his regular shift ended. At the end of his shift on January 27, 2010, he called his employer and spoke to the owner's daughter (i.e., his immediate supervisor). He asked if there was more work available and was told no. Then he asked if after his shift was over he could take the employer's van home overnight, as he would have to pass his house on the way back to the employer's premises from his last job. He was given permission to take the van home.

During cross-examination, the claimant conceded that in the past he had been reprimanded for taking the company vehicle home after work without permission. On January 27, 2010, he knew that he was not permitted to take the company vehicle home at night without first getting permission. When he left for work on January 28, 2010, he did not have any work assignments. The purpose of keeping the van overnight was to make things easier for himself, so he would not have to drive past his house while driving to the employer, and then have to get a ride home. The employer did not receive any benefit from him keeping the van overnight since he was not on-call, and he did not have his assignments for the following day.

He conceded that he is not disputing that the employer has a specific policy saying that employees are not allowed to take the company vehicle home without permission from somebody in a supervisory capacity.

On re-direct examination the claimant testified that as a result of taking the van home the night before the accident, he clocked out from work early.

At the conclusion of the claimant's testimony, the WCLJ disallowed the claim, as the claimant was not on a special errand at the time of his accident, and therefore, his injury did not arise out of or in the course of his employment. The WCLJ found that the claimant was not on-call the night prior to the accident, the purpose of the claimant taking the employer's van home was for his own personal convenience, and at the time of the accident the claimant was on his usual commute to the employer's premises to get his work assignment for that day. The WCLJ noted that the minimal benefit to the employer of having the claimant clock out of work a few minutes early was not enough to make the claim compensable. The WCLJ's findings were memorialized in a decision filed on June 28, 2011.

LEGAL ANALYSIS

In order for an accident to be compensable it must arise both "out of" and "in the course of" employment (see Workers' Compensation Law Section § 2(7) and 10(1); Matter of Rosen v First Manhattan Bank, 202 AD2d 864 [1994], affd 84 NY2d 856 [1994]). An accident arises out of employment if the injury flows as a natural consequence of the employee's duties (Matter of Lemon v New York City Tr. Auth., 72 NY2d 324 [1988]). An accident occurs during the course of employment if the employee was doing the work for which he is employed (id.).

It is well settled that accidents which occur while an employee is commuting to work do not arise out of and in the course of employment since the risks involved in commuting relate to employment on only a marginal level (see Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322; Matter of Coningsby v New York State Dept. of Corrections, 245 AD2d 1009). However, where a sufficient causal nexus exists between the employment and the accident causing the injury, workers' compensation benefits have been allowed (see Matter of Schuhl v Mobil Oil Corp., 268 AD2d 905). In determining whether the required causal nexus exists, the degree of control exercised by the employer over the claimant's activities at the time of the accident is controlling (see Matter of De Jesus v New York State Police, 95 AD2d 454; Matter of Collier v County of Nassau, 46 AD2d 970; Matter of Juna v New York State Police, 40 AD2d 742). "[T]he fact that the employer owned the vehicle which [claimant] was operating at the time of the accident is not enough" to find that an injury sustained while commuting is compensable (Matter of Monachino v P. Vigneri & Sons, Inc., 300 AD2d 797 [2002]).

In the instant case, the claimant was involved in a motor vehicle accident during his normal morning commute to the employer's premises to receive his work assignments for that day. The claimant was driving one of the employer's vehicles at the time of the accident. The claimant was not on-call the night before the accident, and the only reason he had requested to take the employer's vehicle home was because it was more convenient for him, as his home was located between his last appointment and the employer's premises. When he is not on-call, his is not permitted to take the employer's vehicles home without permission. He had been reprimanded in the past by the employer for taking a vehicle home without permission. The claimant conceded that the employer did not derive any benefit from him taking the vehicle home.

The record does not support that the employer exercised the requisite control over the claimant at the time of the accident to create a causal nexus between the claimant's employment and his accident. Based on the claimant's own undisputed testimony, at the time of the accident, the claimant was not on-call, was not running any errand for the employer, and was engaged in his routine commute to the employer's premises to receive his work assignments for the day. The claimant did not testify that the employer required him to drive to the employer's premises using any specific route. The claimant conceded that the employer did not obtain a benefit from him keeping the vehicle overnight.

The "benefit" the claimant contends the employer received from the claimant clocking out early was marginal and fortuitous. There is nothing to suggest that the employer's decision to allow the claimant to borrow the van overnight was based on the miniscule monetary gain it would receive by having the claimant clock out a few minutes early. Furthermore, the record does not support that the risk of accident was increased by the claimant's use of the employer's vehicle.

In his application for Mandatory Full Board Review, the claimant cites Matter of Collier v County of Nassau, (235 AD2d 955 [1997]). In Collier, the court found that "[w]here the employee has 'used the employer's vehicle over a period of time with the employer's consent and for the employer's benefit, the operation of the vehicle [is] directly related to the employment, and any injury occurring during such operation does arise out of an in the course of his employment" (id.) However, in Collier, the employer had assigned the vehicle involved in the accident to the claimant's police unit over an extended period of time so that the members of the unit could drive the vehicle from their homes to a particular assignment area, and that claimant was on-call 24 hours a day when the accident occurred. The claimant here was not assigned the vehicle over an extended period of time, was not on-call 24 hours a day when the accident occurred, and his use of the vehicle was solely for his benefit and not the employer's.

It has also been raised that based on the case of Holcomb v Daily News, 45 NY2d 602 (1978), the dispositive issue is "whether the policy permitting employees use of the van with permission gave rise to a 'frequent and regular practice', or whether it resulted in isolated, infrequent use of the van" and that the case should be returned to the trial calendar for development of the record on that issue. Holcomb stands for the proposition that an employer who assumes by custom or contract the responsibility to transport his employees must likewise bear the responsibility for the risks encountered in connection with the transportation. The Holcomb court stated that:

"While transportation provided by an employer in isolated cases only, or on an infrequent basis, may not be deemed to be an incident of employment, a frequent and regular practice of providing transportation must be viewed differently. Such a course of conduct indicates that the employer has implicitly assumed the responsibility of transporting his employees to work…" (Id.).

Here, the claimant's testimony that on one specific occasion his request to take the employer's vehicle home overnight was granted, does not raise the issue that the employer had a "frequent and regular practice of providing transportation" to its employees. The claimant specifically testified that employees who were not on-call were not permitted to take vehicles home without permission. The claimant had been reprimanded in the past for taking an employer vehicle home without permission. At the end of the claimant's testimony, the claimant's attorney indicated that it had no further questions for the claimant and did not request for any further development of the record.

Even if we assume that claimant's testimony is credible in all respects, there is insufficient evidence in the record that the employer exercised sufficient control over the claimant during his commute, or that the employer frequently and regularly provided claimant with transportation to and from work, which would support a finding that claimant's accident arose out of and in the course of his employment.

Therefore, the Full Board finds, upon review of the record and based upon a preponderance of the evidence, that this claim was properly disallowed because the claimant failed to establish that his injury arose out of and in the course of his employment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on June 28, 2010, is AFFIRMED. No further action is planned at this time.