Case # G0271736
Date of Accident: 06/19/2010
District Office: Binghamton
Employer: Inergy, LP
Carrier: ACE American Insurance Co.
Carrier ID No.: W019004
Carrier Case No.: C494C1605945
Date of Filing of Decision: 01/10/2013
Claimant's Attorney: Learned, Reilly, Learned & Hughes, LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on November14, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on February 2, 2012.

ISSUE

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

The Workers' Compensation Law Judge (WCLJ) found that claimant's accident arose out of and in the course of his employment and established the claim for multiple injuries.

The Board Panel majority affirmed the WCLJ's decision, finding that the claimant was engaged in the reasonable task of retrieving his lunch and was not engaging in horseplay at the time of the accident.

The dissenting Board Panel member found that the claim should be disallowed because the claimant was engaged in a purely personal pursuit at the time of the accident and was not in the scope of his employment.

In the carrier's application for Mandatory Full Board Review, it argues that the claimant's accident did not arise out of and in the course of his employment. The carrier further argues that the claimant violated the employer's rules by driving his motorcycle at a speed in excess of the posted limit.

In rebuttal, the claimant argues that he was on the premises of the employer at the time of the accident, and within a reasonable period of time before he was to start work. The claimant asserts that he is therefore entitled to a presumption that his accident arose out of and in the course of his employment. The claimant further argues that the employers rules regarding speed limits, the use of personal vehicles and travel on the restricted roads were not written and were not strictly enforced and therefore the claimant's violation of them are not a basis for disallowing the claim.

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

FACTS

The claimant filed a C-3 (Employee Claim) on November 22, 2010, alleging that he sustained multiple injuries when he struck a deer while riding his motorcycle to pick up his lunch on June 19, 2010. The carrier controverted the claim, alleging that the claimant was not in the course of his employment at the time of the accident, and was violating the employer's rules.

The claimant testified at a hearing on February 15, 2011, that he worked in the maintenance department of the employer's salt plant. On the date of the accident, he punched in at approximately 5:45 a.m., 15 minutes prior to the start of his shift. Immediately after punching in he decided to pick up what was left of his lunch from the previous day, which he had left in a refrigerator in a trailer at a site called "20 Point"\ on the employer's property, where he had been working the day before. His intention was to return his lunch to the employer's plant, where he would be working that day. The claimant rode his personal motorcycle on the employer's access road to get to 20 Point. The claimant testified that he did not recall seeing any signs saying that only company vehicles were allowed on the road. On his way to 20 Point, the claimant struck a deer and sustained multiple injuries. The claimant testified that a sign at the entrance to the employer's property indicated a 15 mile per hour speed limit. Claimant was not aware of any speed limit on the access road and none was posted. He was not aware of any company policy permitting private vehicles on the access road and he had previously taken his personal motorcycle and pickup truck on the road. At the time of the accident, he was traveling at 30 to 40 miles per hour, and he felt that his speed was appropriate for the conditions.

The claimant's supervisor (Supervisor 1) testified that he was not working on the date of the accident. Supervisor 1 stated that a 15 mile per hour speed limit applies throughout the employer's property. He testified that the employer installed a gate at the entrance to the access road to keep employees from using the road outside of work. However, Supervisor 1 stated that the gate was not locked and he was unable to recall any written policy or memorandum informing the employees that they were not allowed to use personal vehicles on the road. Supervisor 1 stated that the claimant should have been aware of the rule because he was the person who installed the gate.

The supervisor (Supervisor 2) who was working on the date of the accident testified that many employees punch in early. Supervisor 2 could not recall whether the use of private vehicles was discussed with employees at the employer's monthly safety meetings.

In a reserved decision filed on April 11, 2011, the WCLJ found that the claimant was in the course of his employment at the time of the accident and established the claim for multiple injuries. The WCLJ noted that the claimant had punched in for work and was preparing for his work day. The WCLJ specifically found that the claimant was not engaged in horseplay.

LEGAL ANALYSIS

"For an injury to be compensable under the Workers' Compensation Law, it must have arisen both out of and in the course of employment (Workers' Compensation Law § 10) … [T]he course of employment is not limited to the exact time when an employee commences his duties. Rather, it encompasses a reasonable amount of time for the employee to enter his place of employment prior to the beginning of his shift (Matter of Babkees v Electrolux Corp., 4 AD2d 710, lv denied, 3 NY2d 708; Matter of Leatham v Thurston & Braidich, 264 App Div 449, affd 289 NY 804)" (Matter of Torio v Fisher Body Div.-General Motors Corp., 119 AD2d 955 [1986]). Furthermore, if an accident occurred on an employer's premises, the Board can reasonably infer that the resulting injuries occurred in the course of employment (Matter of Husted v Seneca Steel Serv., Inc., 50 AD2d 76 [1975], aff'd 41 NY2d 140 [1976], citing Matter of Ott v Gem Elec. Mfg. Co., 44 AD2d 331 [1974]).

"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)" (Matter of Merchant v Pinkerton's Inc., 50 NY2d 492 [1980]).

"Activities which are purely personal pursuits are not within the scope of employment and are not compensable under the Workers' Compensation Law, with the test being whether the activities are both reasonable and sufficiently work related under the circumstances' (Matter of Vogel v Anheuser-Busch, 265 AD2d 705 [1999]

Here, because claimant's accident occurred on the employer's premises, after he had punched in, and a short time (less than 15 minutes) prior to the start of the shift, the accident clearly occurred in the course of his employment. Moreover, it is important to note that claimant's physical work site was changed on the day of the incident which caused him to retrieve his left over lunch from the previous day's site. The carrier alleges that claimant violated the employer's rules by using his private vehicle on the access road and exceeding the 15 mile per hour speed limit it alleges was imposed on the employer's premises. However, the carrier failed to produce sufficient evidence that those rules, if in fact in place, were ever communicated to the claimant or enforced. Claimant's decision to retrieve his lunch, prior to the start of his shift, from "20 Point," where he had worked the previous day, and bring it to the employer's "plant", where he was scheduled to work on the day of the accident, was certainly reasonable and sufficiently work-related given the fact that his work assignment was changed on the day of the incident.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant's accident arose out of and in the course of his employment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on April 11, 2011, is AFFIRMED. No further action is planned by the Board at this time.