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Case # G1515394
Date of Accident: 12/31/2015
District Office: NYC
Employer: New York City Transit Authority
Carrier: NYC Transit Authority
Carrier ID No.: W848006
Carrier Case No.: TA201502687
Date of Filing of Decision: 10/04/2017
Claimant's Attorney: McIntyre Donohue Accardi Salmonson & Riordan LLP
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed November 23, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the accidental injury claimant sustained during his lunch break arose out of and in the course of his employment.

The Workers' Compensation Law Judge (WCLJ) established this claim.

The Board Panel majority reversed the WCLJ and disallowed the claim, finding that claimant's accident did not arise out of and in the course of his employment.

The dissenting Board Panel member would affirm the WCLJ.

The claimant filed an application for Mandatory Full Board Review on December 15, 2016, arguing that his injury was compensable because his employer continued to exercise authority over him during his lunch break.

The self-insured employer (SIE) filed a rebuttal on January 11, 2017, arguing that based on the general rule that a claimant is no longer in the course of employment while on a lunch break, this claim was properly disallowed.

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

FACTS

Claimant filed a C-3 (Employee Claim) on January 15, 2016, alleging that on December 31, 2015, he was "crossing the street during lunch and I was struck by an SUV." The SIE controverted the claim.

At a hearing on May 2, 2016, claimant testified that he worked as a train operator for the SIE, the New York City Transit Authority. On December 31, 2015, he was restricted to "platform duty" and was scheduled to work an eight-hour shift (transcript, 5/2/16 hearing, p. 4). While on platform duty he was required to help customers and did not operate a train. He could take his lunch break any time between the third and the sixth hour of his eight-hour shift, with permission from the dispatcher. He was paid for his lunch break and was not required to punch in and out when he went to lunch. He is on call during his lunch break. There have been instances when the dispatcher denied him permission to take his lunch break at a particular time because, "They might have needed me to move a train or assist in some other capacity" (p. 6-7). On December 31, 2015, after getting permission from his supervisor, he took his lunch break and while crossing the street he was struck by a vehicle.

On cross-examination, claimant testified that during his lunch break his supervisor could communicate with him by calling his cell phone or by walkie-talkie. He sometimes took a walkie-talkie with him when he went to lunch, but did not bring one when he went to lunch on the date of accident. He has worked for the employer for seven years and had been called by his employer during his lunch break "a number of times over the years" (p. 19). However, he did not recall ever being ordered to return to work by the employer while on a lunch break. He has "come from lunch an they've told me - um - you just picked up a job and need to go..." (p. 20).

The WCLJ, in a decision filed May 5, 2016, established the claim. The SIE requested administrative review.

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]).

In Matter of Carroll v Provenzano (23 AD2d 134 [1965]), cited in the claimant's application for Mandatory Full Board Review, the claimant, a bartender, ordinarily worked six-days per week and had Sunday off. Claimant would typically remain on the employer's premises during his meal break and eat a meal provided by the employer. On the date of accident, claimant was working on a Sunday at the request of the employer to cover the shift of an employee who was on vacation. During the shift, the employer, out of gratitude to claimant for covering the shift, "told claimant to 'Go ahead home for lunch, and if I get busy, I'll call you.'" (Id.) Claimant went home and was injured when he slipped and fell while returning to work from his lunch break. The court, affirming the Board, found that claimant's injury was compensable based on the control the employer exercised over the claimant's lunch break, noting that "the lunch period expressly directed by the employer was co-ordinated with the operation of the enterprise in which he was engaged by subjecting the claimant to continuous recall in the event that his services were in the meantime required" (id).

Claimant also cites Matter of Harford v Widensky's, Inc. (154 AD2d 821 [1989]) in his application for Mandatory Full Board Review. In Harford, the court, affirming the Board, found that decedent's accident occurred while he was on a special errand and that even if claimant was on his lunch break at the time of the accident, as argued by the employer, he nonetheless remained in the course of his employment. The court noted that claimant did not have a fixed lunch period and would break for lunch based on the employer's convenience.

In Matter of Huggins v Masterclass Masonry (83 AD3d 1345 [2011]), claimant testified that if one of the foreman saw him while he was eating his lunch near the work site, the foreman could have required him to come back to work. The court found that this testimony fell "short of establishing that the employer retained control over claimant during his lunch break" (id.). The court in Huggins found it notable that "claimant was not required to carry a beeper, nor was he instructed as to where he should take his lunch break" (id.).

In Tri-bridge and Tunnel Authority (2015 NY Wrk Comp G0305900), the claimant testified that his employer provided him with a radio and he had to respond when he was called by his supervisor while on his lunch break. He could be required to return to work during his lunch break if the employer was short-handed, and this had occurred two or three times during the six years he had worked for the employer. The Full Board in Tri-bridge and Tunnel Authority found that the employer did not exercise sufficient control over the claimant to find that he remained in the course of his employment during his lunch break, and disallowed the claim, noting that claimant was free to do whatever he wanted during his lunch break.

In cases involving off-duty injuries to employees who were "on-call," the court has held that the claimant's on-call status does not "automatically provide the requisite causal nexus" between the injury and claimant's employment to find that the injury arose out of and in the course of employment (Matter of Young v New York State Police, 276 AD2d 984 [2000]).

In the present matter, claimant worked an eight-hour shift and could take his lunch break at any time during a three-hour period from the third to the sixth hour of the shift, subject to the approval of the dispatcher. Although the dispatcher had, on occasion, denied his request to take his lunch break at a specific time, the employer did not dictate what time claimant was required to take his lunch break or where he could go during the break. While claimant testified that he was on-call during his lunch break and could be contacted by his employer by cell phone, he did not recall ever having been called back to work during his lunch break during his seven years with the employer. Nor is there any evidence that claimant was required to bring his cell phone or a walkie-talkie with him on his lunch break.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant was not in the course of his employment at the time of his injury.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 5, 2016, is REVERSED. The claim is disallowed. No further action is planned by the Board at this time.