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Case # G0450271
Date of Accident: 08/11/2011
District Office: Albany
Employer: Berkshire Farm
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 65096240-93
Date of Filing of Decision: 07/17/2013
Claimant's Attorney: Spinac, Mitchell H.
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on June18, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 30, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant had an accident that arose out of and in the course of her employment.

In a decision filed on February 22, 2012, the Workers' Compensation Law Judge (WCLJ) established the claim for a back injury that resulted from an accident on August 11, 2011.

The Board Panel majority disagreed, reversed the WCLJ's decision, and disallowed the claim, finding that the claimant fell while traveling to her employment and that the injuries did not arise out of or in the course of the claimant's employment.

The dissenting Board Panel member would have affirmed the WCLJ's decision establishing the claim for a back injury.

The claimant filed an application for Mandatory Full Board Review on September 5, 2012.

The carrier filed a rebuttal on September 13, 2012.

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

FACTS

On August 16, 2011, the claimant filed a C-3 (Employee Claim) to report that she was injured while working as an overnight youth counselor on August 11, 2011. The claimant reported injuries to her knee, lower back, shoulder, and left leg. She alleged that she was injured as she was leaving staff housing to go to work. She explained that "it was pitch black, [even though she had] asked maintenance several times to fix lighting. [She] held on to iron stair railing [but] missed a step or two [and] fell on [her] knee and lower back."

On September 26, 2011, the carrier filed a C-7 (Notice that Right to Compensation is Controverted) controverting the claim.

The record contains a copy of a lease agreement between the claimant and the employer, but it was signed on August 18, 2011, one week after the claimant's accident.

The record contains a copy of the minutes of a staff housing on-call meeting that was held on February 28, 2007. At the meeting, an on-call schedule was distributed, and the staff was informed that failure to comply with the on-call procedures would result in corrective action: a one day fine of on-call rent deduction as well as three months of housing probation for the first offense, or a loss of staff housing for a second offense within three months of the first offense.

The record also contains a copy of a letter dated December 7, 2007, that was addressed to the claimant and signed by the employer's Deputy Director of Administration (ECF Doc ID #188903967). In the letter, the claimant was advised that her lease would expire on December 31, 2007, and would need to be renewed. The letter also provided notice of a change in policy, as the prior agreement had not met the needs of the employer. As of January 1, 2008, tenants who formerly received a reduced rent in return for carrying a beeper and being on call in the event of emergencies, would no longer do so. Rent would increase to the full amount, which was purportedly still "extremely below" other rental units in the area.

The claimant testified on December 6, 2011, that she was employed as overnight staff at a residential facility. She lived on the employer's campus, renting an apartment that was about two and a half to three miles from the facility where she worked. She could walk to work from the apartment but she usually drove. Housing was not provided as part of her compensation; she had to pay for her housing. She would sign a lease for the housing every four months but there were times when a four month term would expire and it would take some time for her employer to produce a new lease. She did not recall receiving the letter regarding the change in policy for on-site residences. Her shift started at 12:30 a.m. and ended at 9:30 a.m. On the day of her accident, a co-worker who worked a lot of overtime had called her at about 10:00 p.m. and asked her to come in early to relieve him, because he had had a rough day. The claimant responded that she would try to get there a little early, but that she had a few things she needed to do. This was not an unusual request from another worker. The claimant got dressed and left her apartment. It was pitch black when she left, so she held on to the railing. A few steps down, the claimant slipped and fell. She thought her fall happened at about 11:30 p.m., as she was leaving to go to work. After the fall, the claimant was found by her roommate, who was coming home from work. The claimant went to work and advised her senior counselor of her injury.

The claimant testified that staffers had been given beepers and instructed that they needed to be on-call 24 hours per day in the event there was an emergency, such as snow or a missing resident. If a staffer did not respond, that individual would be put on probation. There had been times when someone would knock on her door, and she would be required to help find a missing resident. All workers would be scheduled for on-call work, even if they did not live at the residence. If a worker is not on the schedule for on-call, they would still have the opportunity of volunteering. When they were given beepers, it was expected that those staffers would be on-call. However, she then stated that the "beeper thing kind of went out" at about the time they got cell phones. She could not recall the last time a beeper had gone off; it had not gone off in years. The claimant stated that she had never received a letter advising her that the beeper or on-call policy had changed. She admitted that the beeper was packed away somewhere. There was no emergency on August 11, 2011; she was simply going in to work early, to help out another worker. She had not punched in yet for work at the time of her fall, because her time card did not work. When it was pointed out to her that the fall happened at around 11:45, according to the accident report, the claimant agreed. She was scheduled to begin work at 12:30, and she ordinarily would have arrived at about 12:00. When the accident happened at 11:45, she was basically leaving at her normal time. The claimant testified that there were no restrictions on her coming and going from her own apartment. It was not a secured facility, so she would not have to check in or out with security. There were times when she was called to find a missing resident, outside of her regular shift; however, that had not happened for a few years. It had also been a few years since she had been called to fill in during a snow storm.

A human resources analyst for the employer testified on December 6, 2011, that staff housing is available on the premises as a convenience to the employees. When there is a need for overtime, a list is used based on seniority and the list does not differentiate between those staff members that live on the premises and those that do not. In an emergency, it is probably a benefit to the employer to have some staff on premises, but if an emergency occurs, it is more than likely that the security department will handle it and call the police. The witness identified a letter that was sent to staff to inform them of a change in policy: employees were not automatically on-call just because they lived at the facility. The prior policy was that employees who lived on campus could be called upon to fill in the shift, or report, in the event of an emergency. By the time of the letter, employees were not using beepers. The employees who live on campus are expected to work their normal shifts and it is up to them if they want to work overtime. At the time of the claimant's accident, her residence on campus was about two to three miles from her assigned work location.

The claimant's roommate, another employee, also testified on December 6, 2011. She stated that on August 11, 2011, she saw the claimant getting up. She helped the claimant up. The claimant told her that she fell down the stairs.

In a reserved decision filed on February 22, 2012, the WCLJ established the claim for a back injury, finding that the claimant's injury on August 11, 2011, arose out of and in the course or her employment. The WCLJ found that at the time of her injury, the claimant was an on-call worker, and that she was in the course of her employment when she fell and injured her back on the employer's campus.

LEGAL ANALYSIS

In Matter of Broman v A. Brassard, Inc., 35 AD2d 142 (1970), the employer, a subcontractor, hired the claimant and other employees, who resided in the area of Binghamton, to perform carpentry construction work in Oneonta, which was about 90 miles from the claimant's home.

The employer's foreman wanted the claimant to reside near the job site during the construction project and the claimant also desired to eliminate the onerous travel to the job site from his home. The employer, the general contractor, and the owner all gave their consent for the employees to reside at the project site. Although not required, the advantage to the employer was that the claimant could complete additional work during overtime hours. The claimant fell into a hole at the site one evening at 2:00 a.m. and sustained an injury. The Board found that the injury arose out of his employment and the decision was affirmed by the Appellate Division noting that there was a reasonable probability that the employer would have secured more extensive services from the claimant and thus, there was inferentially a benefit to the employer implicit in the granting of free residence on the job site.

Similarly, in the instant case, the claimant was employed as overnight staff at a residential facility. She lived on-site, renting an apartment that was on the employer's premises. The opportunity to have an on-site residence was one of the benefits the employer offered; it was convenient in bad weather, and if a person was working a four-day shift. If a worker chose to work overtime or fill a position, overtime work was available. Although employees were not required to work overtime, there was a benefit to having workers closer than they might otherwise have been, in the event of inclement weather or other emergency.

Based upon the foregoing, the Full Board finds that there was a benefit to the employer in allowing the claimant to reside on the premises. Therefore, the claimant's accident upon leaving her apartment on the employer's premises to go to work arose out of and in the course of employment.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on February 22, 2012, is AFFIRMED. No further action is planned by the Board at this time.