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Case # G1409281
Date of Accident: 10/17/2014
District Office: NYC
Employer: 14 Café Metro
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 68514199
Date of Filing of Decision: 07/20/2017
Claimant's Attorney: Stanton, Guzman & Miller LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on June 20, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed December 7, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claim arose out of and in the course of employment.

The Workers' Compensation Law Judge (WCLJ) found that the claim arose out of and in the course of employment.

The Board Panel majority reversed the WCLJ decision and disallowed the claim.

The dissenting Board Panel member would find the accident compensable because the claimant was working a double shift and as a result, was required to take her break at an odd hour in the afternoon.

The claimant filed an application for Mandatory Full Board Review on January 4, 2017, arguing that her injury arose out of and in the course of her employment because she was on a special errand when she was injured.

The carrier filed a rebuttal on January 27, 2017, arguing that claimant's accident, which occurred during her unpaid lunch break, did not arise out of and in the course of her employment.

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

FACTS

Claimant filed a C-3 (Employee Claim) dated November 3, 2015, alleging that she injured her back, neck, right knee and right hand when she was hit by a car on October 17, 2014, at 3:00 p.m., as she was crossing the street. At a hearing held on July 5, 2016, the WCLJ found prima facie medical evidence for the neck, back and right knee based on the March 2, 2015, report of Dr. Baum, and continued the matter for the claimant and the employer's witness to testify.

At the hearing held on August 12, 2016, the claimant testified she was working for the employer, a restaurant, as a cashier on October 17, 2014, when she was hit by a yellow cab while crossing the street after buying her brother a gift at a store across the street. She was on her half-hour lunch break when she was injured. She did not pick the time she could go on her lunch break, her boss told her when to go to lunch. She did not get paid for her lunch break. She informed her employer about the accident, and she missed about one week from work.

On cross-examination, the claimant testified she was injured at 3:30 p.m., she had begun working at 8 a.m., had taken a lunch break around 11:00 a.m., and was working a double shift and would have finished work at 11 p.m. She chose to leave work that day because it was her brother's birthday and she went across the street to purchase him a gift. The claimant confirmed she could have remained at the restaurant instead of walking across the street to buy a gift. She does not work a double shift regularly, but only occasionally when she is asked.

At the conclusion of claimant's testimony, the WCLJ precluded the employer from presenting their witness because the witness did not appear. The WCLJ found that claimant's accident arose out of and in the course of employment, and established the claim for the neck, back and right knee because the claimant was working a double shift, and was injured during an unusual second lunch hour which benefitted the employer. The findings were memorialized in a Notice of Decision dated August 17, 2016.

The carrier filed an application for administrative review, arguing that the accident did not arise out of and in the course of employment. The claimant filed a timely rebuttal.

LEGAL ANALYSIS

"The general rule concerning lunchtime injuries is that when an employee with a fixed time and place of work has left the premises for lunch, he is outside the course of his employment (Matter of Jamison v New York State Temporary Comm. on Agric., 308 NY 683 [1954]; Matter of Guzman v Victor Mach. Exch., 61 AD2d 871 [1978])" (Matter of Smith v United States Trucking Corp., 66 AD2d 939 [1978]). Injuries that occur during a lunch break off the employer's premises are generally deemed to occur outside the scope of employment except under limited circumstances, such as when the employer continues to exercise authority over the employee during the lunch break or the employer derives any benefit from the employee's decision to purchase lunch at a particular location (Matter of Smith v City of Rochester, 255 AD2d 863 [1998]). "[I]n the absence of special circumstances, such as a direction on the part of the employer, performance of some duty during the lunch hour, or a lunch period at some odd time caused by something connected with the work, an employee is not considered to be in the course of his employment" (Matter of Guido v Terra-Rube Constr. Corp., 7 AD2d 554 [1959], affd 10 NY2d 858 [1961]).

Here, claimant testified that on the day of the accident, she was scheduled to work a double shift. She arrived at work that day at 8 a.m., and her shift was scheduled to end at approximately 11:00 p.m. She took two unpaid half-hour meal breaks that day, the first at 11:00 a.m. and the second at 3:30 p.m. The record does not reflect when claimant normally began or ended work, or when she typically took a meal break when she was not working a double shift. Therefore, there is no evidence that the 3:30 meal break during which claimant was injured was at an "odd time." Moreover, the statement in Matter of Guido that an injury during a meal break might be compensable when the break was "at some odd time caused by something connected with the work" was dicta (id.). In Guido, it was argued that decedent's lunch break accident was compensable because the employer had provided housing to the decedent and permitted employees, including the decedent, to use the employer's vehicle to go to lunch, and the court concluded that these factors were insufficient to support a finding that decedent's accident occurred in the course of his employment (id.). In Matter of McFarland v Lindy's Taxi, Inc., (49 AD3d 1111 [2008]), claimant, a taxi driver, was injured during a meal break. The court found that claimant's accident arose out and in the course of his employment, stating that "where the nature of the employment dictates the time and place of the meal, [] the employee is still considered to be on the job at the time the break occurs" (id.). The court noted that "the nature of employment as a taxi cab driver fits this exception, since, while employed, he is transient and thus does not control where he or she may be at any given time" (id.). However, there are no Appellate Division cases in which the court has found a meal break injury to be compensable solely because it was taken at an "odd time" due to something connected with claimant's employment, or when the break was taken at a time chosen by the employer.

The most important factor in determining whether a lunch time accident is compensable is whether "the employer continues to exercise authority over the employee during the lunch break" (Matter of Smith v United States Trucking Corp., 66 AD2d 939 [1978]; see also Matter of Baxter v T.G. Peppe, Inc., 81 AD3d 1109 [2011]; Matter of Huggins v Masterclass Masonry, 83 AD3d 1345 [2011]). In the present matter, there is no evidence that claimant's employer continued to exercise authority or control over her during her lunch break.

Accordingly, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant's accident did not arise out of and in the course of her employment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed August 17, 2016, is REVERSED. This claim is disallowed. No further action is planned by the Board at this time.