Case # G0320181
Date of Accident: 08/11/2010
District Office: NYC
Employer: Aeropostale
Carrier: Charter Oak Fire Ins. Co.
Carrier ID No.: W054001
Carrier Case No.: 022-CB-RL2789-R
Date of Filing of Decision: 01/10/2013
Claimant's Attorney: Grey and Grey LLP
Panel: Robert E. Beloten

The Full Board, at its meeting on November 14, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed January 17, 2012.

ISSUE

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

The Workers' Compensation Law Judge (WCLJ) established the claim, finding that the claimant was injured in the course of his employment.

The Board Panel majority affirmed the WCLJ's decision, finding that the claimant's accident arose out of and in the course of his employment as it occurred after the conclusion of his lunch break and while he was retrieving merchandise for a co-worker.

The dissenting Board Panel member credited the testimony of the employer's witnesses and determined that the claimant was on a lunch break at the time of his accident, and was therefore not in the course of his employment.

In its application for Mandatory Full Board Review, the carrier asserts that the claimant was performing a prohibited act during an unpaid lunch break such that the injuries he sustained were not work related. In his rebuttal, the claimant argues that his credible testimony compels the conclusion that his injuries were work related.

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

FACTS

The claimant, a stock associate at a retail store, filed a C-3 (Employee Claim) form on August 14, 2010, in which he alleged injuries to his left forearm, right wrist, right hip, groin, and back, that occurred at 2:15 PM on August 11, 2010, when he fell from a shelving unit that was moved by his coworkers.

In a C-2 (Employer's Report of Work Related Injury), filed on August 19, 2010, the employer reported that the claimant was injured at 2:15 PM on August 11, 2010, while lying on top of a shelf in the stockroom during his break.

The carrier filed a C-7 (Notice that Right to Compensation is Controverted) form on August 26, 2010, in which it indicated that because the claimant was on an unpaid break and was sleeping on a shelf at the time he was injured, his accident did not arise out of and in the course of his employment.

At a hearing held on April 14, 2011, the claimant testified that as of August 2010, he had worked for the employer as a part-time "merchandise flow" associate for approximately ten months. The claimant explained that on August 11, 2010, he clocked out for his hour long lunch break at approximately 1:00 PM. He brought his lunch back to the stockroom in which he worked and climbed on top of the shelving. The claimant testified that "as an hour passed," he heard his coworkers searching for a specific women's shirt. He retrieved the merchandise and as he was climbing down, the shelving was moved, causing him to fall eight to ten feet to the floor. He believed the accident occurred at approximately 2:15 PM. The claimant's stock manager accompanied him to the hospital by taxi. The claimant returned to work in March 2011. The claimant explained that it was fairly common for employees to eat lunch on the stockroom shelves and for employees to willingly assist in retrieving merchandise while having their lunch in the stockroom. The claimant stated that he had slept on the shelving units in the past, but he was not sleeping during his lunch break on the day of his accident.

On cross-examination, the claimant testified that he was unaware that eating or sleeping on the stockroom shelves was prohibited. The claimant stated that he would willingly assist co-workers in locating merchandise while on his lunch break in the stockroom. The claimant explained that prior to falling from the shelves, he had not notified his co-workers that he had located the merchandise for which they were searching.

The claimant's co-worker testified at the April 14, 2011, hearing, that he was working alone in the stockroom when he heard the claimant fall from the shelves. The claimant's co-worker believed that the accident occurred between 1:30 and 2:00 PM. The coworker immediately called the manager, who took the claimant to the hospital. Prior to the claimant's fall, the co-worker explained that he had been discussing the location of a specific women's shirt with another employee. The co-worker, who had worked for the employer for four years, testified that it was not common for employees to eat lunch in the stockroom. He stated that according to the employer-provided handbook, employees were prohibited from remaining on the premises during lunch or short breaks, but he was not aware of an employee having ever been reprimanded for remaining on the premises during a break. The co-worker stated that he had never noticed the claimant taking a lunch break in the stockroom prior to the date of his injury.

The claimant's current supervisor also testified at the April 14, 2011, hearing. The supervisor explained that he worked as a stock associate in August 2010. He believed the claimant's accident occurred between 12:00 and 1:00 PM. The supervisor was in the stockroom helping the co-worker move the shelving units in order to locate an item of merchandise when he witnessed the claimant and a stack of clothing fall eight to ten feet to the floor. He stated that the claimant appeared to have fallen from a lying down position. The supervisor explained that although technically prohibited, it was common for employees to spend their lunch breaks in the stockroom in August of 2010, and that the managers were aware of this practice.

The employer's associate operations manager also testified at the April 14, 2011, hearing. He explained that an employee had retrieved him from another part of the store when the claimant was injured. The operations manager testified that he was informed by the claimant that he had been sleeping on top of the shelving units when he fell. He arranged for the stock manager to accompany the claimant to the hospital. He explained that in August 2010, employees would routinely have lunch in the stockroom, but would not eat or sleep in the shelves among the merchandise. He stated that the employer had a policy prohibiting eating among the merchandise that was contained in the employee handbook and on posters hung in the stockroom.

The employer's stock manager also testified at the April 14, 2011, hearing. He explained that he was not in the stockroom at the time of the claimant's accident, but that an employee had informed him that the claimant was injured. The stock manager stated that two days before the claimant was injured, he had warned the claimant not to spend his breaks on the shelving units.

The employer's associate manager also testified at the April 14, 2011, hearing. He explained that in August 2010, employees would occasionally spend a portion of their lunch breaks in the stockroom, but he was unaware of anyone sleeping there. The associate manager stated that the policies prohibiting eating in the stockroom were in the employee handbook and on posters hung on the stockroom wall.

In a decision filed on April 21, 2011, the WCLJ established the claim for injuries to the claimant's right wrist, lower back, right hip, left forearm, and right groin, finding that the claimant fell while retrieving an article of clothing from the stockroom shelves and was therefore, injured in the course of his employment.

LEGAL ANALYSIS

Workers' Compensation Law (WCL) § 10(1) provides that compensation shall be provided for injuries "arising out of and in the course of the employment without regard to fault." Furthermore, the claimant is entitled to a presumption under § 21(1) that "the claim comes within the provision" of the Workers' Compensation Law, absent substantial evidence to the contrary. However, "that statute does not wholly relieve [a claimant] of the burden of demonstrating that the accident occurred in the course of, and arose out of" the claimant's employment (Matter of Bond v Suffolk Transp. Serv., 68 AD3d 1341 [2009] [citations omitted]).

"As a general rule, the misconduct of an employee, whether framed in terms of simple negligent dereliction of duty or even willful disobedience of the rules of the workplace, has no bearing upon whether an injury is compensable. Under the Workers' Compensation Law, fault of the respective parties simply has no bearing to the basic test of coverage (see Matter of Granger v Urda, 44 NY2d 91, 97). Instead, with limited exception, the sole inquiry is whether the injury arose out of and in the course of employment (see Workers' Compensation Law, § 21). If that inquiry be answered in the affirmative, compensation will be awarded the injured worker 'without regard to fault as a cause of the injury' ([WCL] § 10; see also § 2, subd 7). And, in keeping with the remedial purpose of compensation laws generally, the Workers' Compensation Law is to be liberally construed 'to accomplish the economic and humanitarian objects of the act' (Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 145). Because of these general considerations, then, there has never developed a rule of general applicability to the effect that an employee forfeits his compensation coverage by performing his duties in a needlessly dangerous way or in conscious disregard of the employer's instructions (1A Larson, Workmen's Compensation Law, § 30.00)" (Matter of Merchant v Pinkerton's Inc., 50 NY2d 492 [1980]).

"The 'work rule' cases proceed under this general premise. Simply stated, there is a crucial distinction between the job the claimant has been hired to perform and the manner in which the employee is to accomplish that task. Where the disobedience of a work rule results in the employee overstepping the boundaries defining the ultimate work to be done, the prohibited act is outside the course of employment and any claim for compensation arising therefrom will be denied. But when the misconduct involves a violation of the employer's regulations or prohibitions relating to the method of accomplishing the ultimate work, however strictly enforced those regulations may be, the act remains within the course of employment. In such a case, disobedience of the prohibition does nothing more than establish fault on the part of the injured employee. Since fault concepts generally are immaterial to compensation law, violation of a work rule relating to the manner in which the job is to be accomplished does not result in an injured employee forfeiting the right to compensation (Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322; see Matter of Kilgore v Fragola, 14 AD2d 612; Matter of Macechko v Bowen Mfg. Co., 179 App Div 573)" (Matter of Merchant v Pinkerton's Inc., 50 NY2d 492 [1980]).

In the instant case, the claimant testified that toward the end his lunch break, while in the employer's stockroom, he attempted to retrieve an article of clothing sought by a co-worker, when he fell eight to ten feet from the top of a shelving unit. The WCLJ who heard the testimony of all the witnesses found the claimant's testimony with respect to the circumstances of his injury to be credible. The WCLJ found the allegation that the claimant was asleep at the time of his fall not to be credible. Although the Board is entitled to make its own factual findings and is not bound by the credibility determinations of a WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 [2003]), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 [1991]).

Although the claimant's presence in the stockroom during his lunch break and eating amongst the merchandise was allegedly prohibited by the employer, the record supports a finding that the behavior was generally tolerated by the employer at the time of the claimant's injury. The claimant's attempted retrieval of a piece of merchandise from the shelving unit was a main component of the claimant's employment and his employer clearly derived a benefit from such actions (see City of Rochester, 255 AD2d 863 [1998]).

The Full Board finds that the preponderance of the credible evidence in the record supports a finding that that claimant's injury arose out of and in the course of his employment.

CONCLUSION

Accordingly, the WCLJ decision filed on April 21, 2011, is AFFIRMED. No further action is planned at this time.