Case # G0257109
Date of Accident: 03/31/2010
District Office: NYC
Employer: NYC Housing Authority
Carrier: NYC Housing Authority
Carrier ID No.: W843254
Carrier Case No.:
Date of Filing of Decision: 10/10/2012
Claimant's Attorney: Allen J. Tishman
Panel: Robert E. Beloten

The Full Board, at its meeting held on September 11, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on December 1, 2011.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. whether the claimant had an accident that arose out of and in the course of her employment; and
2. if the claim is established, whether the Workers' Compensation Law Judge (WCLJ) properly reduced the amount of the attorney's fee to $450.00.

In a decision filed on October 15, 2010, the WCLJ established the claim for injuries to the neck, back, right shoulder, and right hip; made awards for the period from April 5, 2010, to August 11, 2010, at the temporary total rate of $433.33 per week, and for the period from August 11, 2010, to October 12, 2010, and continuing, at the mild rate of $216.67 per week; and awarded a fee in the amount of $450.00 to the claimant's attorney.

In a Memorandum of Decision filed December 1, 2011, the Board Panel majority reversed the WCLJ's decision and disallowed the claim, concluding that the claimant's injury did not arise out of and in the course of her employment.

The dissenting Board Panel member would have remanded the case to the WCLJ for further development of the record on whether the claimant was injured while she was engaged in a special errand for the employer.

Claimant filed an application for Mandatory Full Board Review on December 30, 2011.

The self-insured employer (SIE) filed a rebuttal filed with the Board on January 19, 2012.

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

FACTS

On April 30, 2010, the claimant filed a C-3 (Employee Claim) and alleged that she was injured at work at 7:56 a.m. on March 31, 2010. The claimant reported injuries to her right shoulder, collar bone, head, right leg and ankle, left ribs, back, and left hand that resulted from being hit by a vehicle as she crossed the street.

The SIE does not dispute the fact that the claimant was injured but argues that the accident did not arise out of and in the course of the claimant's employment.

The claimant testified on October 12, 2010, that she was working for the employer as a caretaker on March 31, 2010. She worked at the employer's location on Ralph Avenue in Brooklyn. Her normal working hours are 8:00 a.m. to 4:30 p.m. She reported to work at about 7:52 a.m. on March 31, 2010. She went into the maintenance area to clock in. The employees have a swipe card to scan through the time clock but she did not have the card with her when she arrived at the maintenance area. Since she did not have her card, she would have had to fill out an alternate time sheet, which would need to be signed by her supervisor. She told her supervisor that she did not have her swipe card, and he told her that she could fill out an alternate time sheet but that she needed to wait until after 8:00 a.m. when the assignments are given out. She asked if she could go to the store to get a cup of coffee. Her supervisor told her she could go to the store and asked her to bring him some tea. The claimant had gotten tea for her supervisor before. The store is directly across the street from her work location. The claimant did not make it to the store because she was hit by a car while crossing the street. It was normal for the employees that arrived early to go and get a beverage before work.

The supervisor testified on October 12, 2010, that the claimant arrived to work at about 7:52 a.m on March 31, 2010. Her normal working hours are 8:00 a.m. to 4:30 p.m. The procedure for an employee to clock in is to swipe her card, and if an employee does not have her card, she must fill out an alternate time sheet. On March 31, 2010, the claimant had asked for an alternate time sheet but the supervisor did not give her one because the claimant wanted to go to the store first to get some coffee. Otherwise, she could have filled out the time sheet before she left. The supervisor did not ask the claimant to purchase anything for him at the store. He did not ask her to buy him some tea and had never asked her in the past to do so. On cross examination, the supervisor conceded that he is unsure what transpired when the claimant asked for the alternate time sheet; he may have told her to wait until after 8:00 a.m. The employees do not need the supervisor's approval to go across the street. The supervisor cannot give the work assignments to the employees until 8:00 a.m.

The WCLJ heard oral summations from the parties and then established the claim for injuries to the neck, back, right shoulder and right hip; made awards for the period from April 5, 2010, to August 11, 2010, at the temporary total rate of $433.33 per week, and for the period from August 11, 2010, to date, and continuing, at the mild rate of $216.67 per week; and awarded a fee in the amount of $450.00 to the claimant's attorney. The claimant's attorney had requested a fee in the amount of $1,500.00. However, the WCLJ noted that the claimant had not filed a pre-hearing conference statement.

The WCLJ's findings were set forth in a decision filed on October 15, 2010.

LEGAL ANALYSIS

In her application for Mandatory Full Board Review filed on December 30, 2011, the claimant argues that her arrival to work at 7:52 a.m. was for the employer's benefit, that she was no longer commuting to work when the accident occurred, and that if she had been given the alternate time sheet when she arrived, she would have been clocked in prior to the accident. The claimant further argues that the accident occurred while she was taking a very brief break for coffee. The claimant's attorney further contends that the WCLJ unfairly reduced the $1,500.00 fee to $450.00, and requests that the fee be increased to $1,050.00.

In a rebuttal filed with the Board on January 19, 2012, the attorneys for the SIE request that the decision of the Board Panel majority be affirmed, since the claimant did not have an accident arising out of and in the course of her employment. The SIE argues that there is no evidence that the claimant was actually on duty at the time of the accident. The SIE noted the general rule that employees are not within the scope of their employment while commuting to and from work (Matter of Lemon v New York City Tr. Auth., 72 NY2d 324 [1988]), and that no exception to the general rule applies here since the claimant was not subjected to any "special hazard" while she was crossing the street (Matter of Husted v Seneca Steel Serv., 41 NY2d 140 [1976]).

Accident arising out of and in the course of employment

To be compensable, an injury must arise out of and in the course of employment (see WCL § 10). As noted above, the claimant argues that her injuries are compensable because she was on a coffee break when the accident occurred. In order to find that the claimant sustained a compensable injury while on a coffee break, the record must contain sufficient evidence to find that prior to the break, the claimant was in the course of employment, and that the coffee break was only a momentary deviation from employment such that it did not interrupt the claimant's employment (Matter of Marotta v Town & Country Elec., Inc., 51 AD3d 1126 [2008]).

In Marotta, the Court noted that "[m]omentary deviation[s] from the work routine for a customary and accepted purpose will not bar a claim for benefits 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" (id. [internal citations and quotations omitted]). The Court noted the timing of events that occurred prior to when the claimant in Marotta was injured. Specifically,

"the claimant [had] reported to work at 7:55 A.M., discussed work plans for the week with his partner, and loaded his work truck with supplies and materials. He then drove to the site of his assigned electrical job [but while en route] went to a drive-through window to purchase coffee and a muffin and, when he reached for his money in his back pocket, he felt a 'pop' in his back and experienced pain radiating down both legs and, later, paralysis in his right leg" (id.).

In Marotta, the Court reversed the Board Panel's decision to disallow the claim finding that, "[w]hile the Board recognized that claimant's accident occurred in the course of his employment, it concluded that he had deviated from his employment when he stopped for coffee while en route to his job site and, thus, the injury did not arise out of his employment" (id.).

Here, it is undisputed that prior to attempting to cross the street to get some coffee, the claimant had arrived at her workplace. As such, there is sufficient evidence in the instant matter to find that the claimant was "in the course of her employment" when she took a short break and left her workplace to go get coffee.

Therefore, the Full Board finds that the claim is established on the theory that claimant was in the course of her employment once she arrived at her place of employment and was injured during a short, routine break soon after her arrival.

Amount of attorney's fee

Turning to the issue of whether the WCLJ properly reduced the amount of the attorney's fee to $450.00, the claimant's attorney requests that the fee be increased to $1,050.00. The claimant's attorney acknowledges that he did not timely file a pre-hearing conference statement. However, the claimant's attorney argues that the untimely filed statement did not delay the case in any way and therefore, the WCLJ should not have made such a large deduction from the fee requested.

12 NYCRR 300.38(f)(5)(i), states that "[t]he legal fee of claimant's legal representative shall be subject to a mandatory, substantial reduction for failure to timely serve on all parties and file with the Board the claimant's pre-hearing conference statement [emphasis added]."

Here, the WCLJ substantially reduced the fee requested by the claimant's attorney, pursuant to 12 NYCRR 300.38(f)(5)(i). There is nothing in the language of the regulation that supports the claimant's attorney's argument that his fee should be increased from that awarded by the WCLJ because his failure to file the pre-hearing conference statement did not cause a delay in the case.

Therefore, the Full Board finds that based on the claimant's attorneys' failure to timely file the pre-hearing conference statement, the attorney's fee should be substantially reduced to $450.00, pursuant to 12 NYCRR 300.38(f)(5)(i).

CONCLUSION

Accordingly, the WCLJ decision filed October 15, 2010, is AFFIRMED. The case is continued.