The Full Board, at its meeting held on October 16, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed November 15, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant was in the course of his employment at the time of his April 22, 2009, motor vehicle accident (MVA) or had deviated from his employment.
By a decision filed on September 30, 2010, the Workers' Compensation Law Judge (WCLJ) found that the claimant was injured in the course of his employment and established the case for injures to the claimant's right shoulder and neck.
The Board Panel, in a decision filed November 15, 2011, affirmed the WCLJ's decision.
The dissenting Board Panel member found the claimant had deviated from his employment and would have disallowed the claim.
The carrier filed an application for Mandatory Full Board Review on November 15, 2011.
The claimant filed a rebuttal on December 16, 2011.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a delivery person, sustained injuries to his right shoulder and neck on April 22, 2009, when he was rear-ended by another vehicle at a stoplight. The carrier controverted the claim, contending that the claimant had deviated from his employment at the time of the MVA. According to the MV-104 (NYS Department of Motor Vehicles Report of Motor Vehicle Accident), the accident occurred at 10:30 A.M. at Broadway and 72nd Street in Manhattan. The report states that the vehicle driven by claimant was "traveling straight ahead N/B on W. 72 Broadway" when it was rear-ended by another vehicle.
The claimant testified at a hearing held September 24, 2010, that he was a truck driver who would pick a truck and delivery material up at the employer's premises at 617 11th Avenue, on the west side of Manhattan (between 45th and 46th Street), and deliver the items, which consisted of construction material, to various addresses in New York City. He was paid hourly. He would get a list of delivery sites in the morning when he reported to the employer's premises. He would normally make eight to twelve deliveries per day, but on the date of accident, he had only been given two deliveries for his morning shift, at 60th and 5th Avenue and 520 Madison Avenue (between 53rd and 54th Street). He made these two deliveries and was waiting for the employer/dispatcher to call him with any other assignments. While waiting, he decided to stop for breakfast at "Niko's" at 76th Street (and Broadway). After he ate, he was going to return to the employer's premises, as he had received a call at 10:00 A.M., after he had gotten his breakfast. While on his way back to the office, he was rear-ended by another vehicle at Broadway and 72nd. After the MVA he called his employer and went back to the employer's premises. His supervisor reprimanded him and sent him to see the Director of Safety and Security. The claimant was terminated. He began experiencing the effects of the accident a week after it occurred. Claimant denied being aware of any restriction on his ability to use the company's truck to stop and have breakfast. He believed he could use the company's truck within Manhattan, and that he was allowed to drive it within areas he made deliveries. The first two deliveries of April 22, 2009, were within blocks of each other, but the restaurant was not. The claimant denied that he went home while awaiting the call.
The claimant's manager also testified at the September 24, 2010, hearing. He confirmed the claimant was a truck driver and delivered supplies. He also acknowledged that the number of deliveries assigned on any given day could vary. On the date of accident, the claimant was assigned truck #39, and had two deliveries in the morning, According to the truck's GPS system, claimant reached his first delivery destination at 6:51 A.M. and left at 7:20 A.M., and reached his second delivery destination at 7:38 A.M. and departed at 8:53 A.M. After completing these deliveries, the claimant was supposed to return to the office for additional assignments, but did not return until 11:47 A.M. The witness stated the employer had been looking for the claimant, as he had more deliveries for him to make. When the claimant returned to the office, he advised he had been involved in a MVA at Broadway and 72nd. As the claimant was not supposed to be in that area, he was terminated the next day. The witness testified that the GPS system on the truck showed that the truck had been parked at the claimant's home address (between 139th and 140th Street on the West Side of Manhattan) from 9:31 A.M. through 10:07 A.M. The claimant was not supposed to go home, nor was he supposed to deviate significantly from his route to go eat at his "favorite" restaurant. If the claimant wanted to get food or drink, it would be acceptable to stop somewhere along his route. However, "Niko's" was not in the area of his morning deliveries. The witness acknowledged that employees were provided with a handbook setting for the employer's rules and regulations, he did not know what it stated concerning lunch/breakfast policy, did not know what drivers were told about taking lunch/breakfast when hired, and did not know what time the dispatcher called the claimant on April 22, 2009.
A copy of the GPS records was introduced into evidence (doc. #171384616), and appears to confirm that claimant was parked on West 140th Street from 9:31 A.M. to 10:07 A.M.
The employer's Director of Safety and Security also testified on September 24, 2010. He explained that an orientation is given to new hires and they are advised that when they are done with deliveries, they are to return to the office, rather than taking lunch. The only way a driver would be advised that additional deliveries awaited them was if they stopped back at the office. In Manhattan, drivers are told to take their lunch at 12:00-12:30. While workers are not forbidden from picking up food a little earlier than 12:00, if they choose to do this, they should call the place of business and advise. He testified that there would be no reason for the claimant to be awaiting a call from dispatch as the claimant alleged, as he could have radioed the office.
Following development of the record, the WCLJ ruled, in a decision filed September 30, 2010, that the claimant was injured in the course of his employment and established the claim for injures to the claimant's right shoulder and neck.
"To be compensable, an injury must arise out of and in the course of employment (see Workers' Compensation Law § 10)… [If] the injury occurred during the course of claimant's employment, a presumption arises that it also 'arose out of' the scope of his employment, unless the presumption is successfully rebutted by substantial evidence to the contrary (Gutierrez v Courtyard by Marriott, 46 AD3d 1241; accord Matter of Camino v Chappaqua Transp., 19 AD3d 856 ; see Workers' Compensation Law § 21). '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  [citation omitted]; see Matter of Richardson v Fiedler Roofing, 67 NY2d 246 ; Matter of Pagano v Anheuser Busch, 301 AD2d 977 )."
"'Although the question of whether an activity constitutes a purely personal pursuit is one of fact for the Board to resolve, the Board's decision will not be sustained if it is unsupported by the evidence in the record' (Matter of Harris v Poughkeepsie Journal, 289 AD2d 640  [citation omitted]; see Matter of Camino v Chappaqua Transp.,19 AD3d at 856)…Importantly, '[m]omentary deviation[s] from the work routine for a customary and accepted purpose will not bar a claim for benefits' (Matter of Richardson v Fiedler Roofing, 67 NY2d at 249) and '[a]ccidents that occur during an employee's short breaks, such as coffee breaks, are considered to be so closely related to the performance of the job that they do not constitute an interruption of employment' (Matter of Pabon v New York City Tr. Auth., 24 AD3d 833 ; see Matter of Caporale v Dept. of Taxation & Fin., 2 NY2d 946 , affg 2 AD2d 91 ; cf. Matter of Marquis v Frank's Vacuum Truck Serv., Inc., 29 AD3d 1038 ; Matter of Balsam v New York State Div. of Empl., 24 AD2d 802  [the claimant deviated from approved coffee break])" (Matter of Marotta v Town & Country Elec., Inc., 51 AD3d 1126 ).
Here, the record reflects that claimant completed his second delivery of the morning on April 22, 2009, at 8:53 A.M. Although claimant denies having gone home on the morning of April 22, 2009, the GPS records submitted by the employer reflect that instead of returning to his employer's premises at 617 11th Avenue (between 45th and 46th Street), claimant instead drove in the opposite direction, to upper Manhattan, and parked from 9:31 A.M. to 10:07 A.M. on West 140th Street, a short distance from his home address. Claimant alleges that he obtained breakfast at Niko's on 76th Street (and Broadway), received a call at 10:00 A.M. from his employer, and after he had gotten his breakfast, was returning to his employer' premises when he was rear-ended by another vehicle at Broadway and 72nd. The MV-104, which appears to have been completed by the claimant, seems to indicate that the accident occurred while he was traveling northbound on Broadway at 72nd Street, rather than southbound, towards his employer's premises.
Clearly, claimant deviated from his employment after completing his second delivery at 8:53 A.M. on April 22, 2009. That deviation continued for more than 90 minutes when, at approximately 10:30 A.M., he was involved in a motor vehicle accident more than 25 blocks north of his employer's premises, after having been parked near his home address for more than half an hour. Under these circumstances, the Full Board finds that the deviation undertaken by the claimant was not "short," "momentary" or in any way related to his employment. Rather, the record suggests that the deviation was lengthy and entirely personal. Therefore, the Full Board finds that the claimant was not in the course of his employment at the time of his injury.
ACCORDINGLY, the WCLJ decision filed on filed September 30, 2010, is REVERSED. This claim is disallowed.