| Matter of McFarland v Lindy's Taxi, Inc. |
| 2008 NY Slip Op 02718 [49 AD3d 1111] |
| March 27, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Argay McFarland, Respondent, vLindy's Taxi, Inc., et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Grey & Grey, Farmingdale (Christopher Falconetti of counsel), for Argay McFarland,respondent. Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), forWorkers' Compensation Board, respondent.
Kavanagh, J. Appeal from a decision of the Workers' Compensation Board, filed October 25,2006, which ruled that claimant sustained an accidental injury arising out of and in the course ofhis employment.
In August 2003, claimant, while employed as a taxi driver, was parked in a parking lot on ameal break when he was asked for assistance by a fellow motorist who had a dead battery. Asclaimant was placing jumper cables on the battery, the battery exploded, causing claimant to losehis left eye. A Workers' Compensation Law Judge ruled that claimant's assistance of the strandedmotorist was a personal act, outside the scope of his employment, and therefore his injury wasnot an accident within the meaning of Workers' Compensation Law § 10 and disallowedthe claim. The Workers' Compensation Board modified the Workers' Compensation Law Judge'sdecision to the extent of finding that claimant's injury did not arise in the course of hisemployment, as he was on a meal break at the time of the accident, and affirmed thedisallowance of the claim. Upon claimant's application for full Board review, the full Boardrescinded the Board panel's decision and referred the matter back for further consideration. Thepanel then reversed its prior decision and found that claimant's injury did arise out of and in thecourse of his employment, prompting this appeal.
We affirm. To be compensable under the Workers' Compensation Law, an injury must havearisen both out of and in the course of a claimant's employment (see Workers'Compensation Law § 10; Matter of Moore v Ogden Allied, 284 AD2d 624, 625[2001]). The employer contends that as claimant was on a meal break at the time of the accident,his injuries are not compensable. Injuries sustained during meal breaks taken off employer'spremises are generally not compensable. However, where the nature of the employment dictatesthe time and place of the meal, and the employee is still considered to be on the job at the timethe break occurs, the rule does not apply (see Matter of Cellura v Hall & Co., 36 AD2d868, 869 [1971]; Matter of Relkin v National Transp. Co., 18 AD2d 137, 138 [1963],lv denied 13 NY2d 593 [1963]). Moreover, the nature of employment as a taxi cab driverfits this exception, since, while employed, he is transient and thus does not control where he orshe may be at any given time (see Matter of Relkin v National Transp. Co., 18 AD2d at138). Here, the employer's representative testified that drivers took 15 to 20 minute meal breaksat a time and place convenient to the employer and with its express permission. As such, theBoard's determination that claimant's injury occurred during the course of his employment issupported by substantial evidence (seeMatter of Pabon v New York City Tr. Auth., 24 AD3d 833, 833 [2005]; Matter ofHarford v Widensky's, Inc., 154 AD2d 821, 822-823 [1989]).
The employer also contends that claimant's injuries did not arise out of his employment sincehis assistance of the motorist was a forbidden act, based upon the fact that the employerpurposely did not supply the taxi cabs with jumper cables and specifically instructed the driversnot to attempt any repairs on their vehicles. While purely personal activities are outside the scopeof employment and not compensable, the determination whether the activity is outside the scopeof employment is a factual one for the Board's resolution (see Matter of Mills v New York State Police, 41 AD3d 1083, 1083[2007]; Matter of Marquis v Frank'sVacuum Truck Serv., Inc., 29 AD3d 1038, 1038-1039 [2006])
However, once an injury has been found to arise in the course of employment, it is presumedto have arisen out of such employment, and this presumption can only be rebutted by substantialevidence to the contrary (see Matter ofCamino v Chappaqua Transp., 19 AD3d 856, 856-857 [2005]; Matter of Keevins vFarmingdale UFSD, 304 AD2d 1013, 1014 [2003]). While injuries by employees sustainedduring the commission of acts which are specifically forbidden by their employers have beenfound not to be compensable (see e.g. Matter of Appleberry v Moskowitz, 50 AD2d1001, 1002 [1975]), our review of the record indicates that claimant was not forbidden by hisemployer from aiding a stranded motorist while in the course of his employment. Furthermore,when an employee in the course of employment is temporarily involved in an activity that eitherdirectly or indirectly benefits the employer, the activity falls within the scope of employment(see Matter of Cruz v Karl Ehmer, Inc., 282 AD2d 841, 843 [2001]; Matter of Purdyv Savin Corp., 135 AD2d 975, 976 [1987]; Matter of Morningstar v Corning BakingCo., 6 AD2d 128, 131 [1958], lv denied 5 NY2d 707 [1958]). Here, based on the factthat claimant's vehicle was clearly marked with the employer's name, the Board was entitled toconclude that claimant's assistance of the motorist created a good will benefit to the [*2]employer. Based on these considerations, we find that thepresumption favoring claimant has not been rebutted.
Mercure, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the decision is affirmed,without costs.