| Matter of Marotta v Town & Country Elec., Inc. |
| 2008 NY Slip Op 04035 [51 AD3d 1126] |
| May 1, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of John J. Marotta, Appellant, v Townand Country Electric, Inc., et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Williams & Williams, Buffalo (Ellen Shanahan Becker of counsel), for Town and CountryElectric, Inc. and another, respondents.
Spain, J. Appeal from a decision of the Workers' Compensation Board, filed February 21,2007, which ruled, among other things, that claimant's injury did not arise out of his employmentand denied his claim for workers' compensation benefits.
On the morning of March 14, 2005, claimant—an electrician and covered salariedco-owner of the employer—reported to work at 7:55 a.m., discussed work plans for theweek with his partner, and loaded his work truck with supplies and materials. He then drove tothe site of his assigned electrical job. On the direct route to the job site, claimant went to adrive-through window to purchase coffee and a muffin and, when he reached for his money in hisback pocket, he felt a "pop" in his back and experienced pain radiating down both legs and, later,paralysis in his right leg. He was hospitalized and diagnosed with herniated disks and underwentemergency transpedicular diskectomies, or disk and fragment removal, and decompression.Claimant, unable to return to work until September 12, 2005, filed a claim for workers'compensation benefits, which the employer's workers' compensation carrier disputed. Claimanttestified at a hearing, submitted medical evidence in support of his claim from his treatingneurosurgeon and [*2]underwent two independent medicalexams.
The Workers' Compensation Law Judge determined that claimant's injuries werework-related and awarded him benefits. On the carrier's appeal, the Workers' CompensationBoard reversed, finding that claimant had deviated from his employment when he went to thedrive-through and, thus, his injury did not arise out of his employment. The Board also concludedthat the record did not support a finding of occupational disease. Claimant appeals.
To be compensable, an injury must arise out of and in the course of employment (seeWorkers' Compensation Law § 10). There is no dispute that claimant's injury occurredduring the course of his employment, given that he had reported to the employer's office, loadedhis work truck with supplies and was en route to his designated job site and, as such, had startedhis work day (see Matter of Gutierrez vCourtyard by Marriott, 46 AD3d 1241, 1242 [2007]). Since the injury occurred duringthe course of claimant's employment, a presumption arises that it also "arose out of" the scope ofhis employment, unless the presumption is successfully rebutted by substantial evidence to thecontrary (id.; accord Matter ofCamino v Chappaqua Transp., 19 AD3d 856, 856-857 [2005]; see Workers'Compensation Law § 21). "Activities which are purely personal pursuits are not within thescope of employment and are not compensable under the Workers' Compensation Law, with thetest being whether the activities are both reasonable and sufficiently work related under thecircumstances" (Matter of Vogel v Anheuser-Busch, 265 AD2d 705, 705 [1999] [citationomitted]; see Matter of Richardson v Fiedler Roofing, 67 NY2d 246, 249 [1986];Matter of Pagano v Anheuser Busch, 301 AD2d 977, 978 [2003]).
"Although the question of whether an activity constitutes a purely personal pursuit is one offact for the Board to resolve, the Board's decision will not be sustained if it is unsupported by theevidence in the record" (Matter of Harris v Poughkeepsie Journal, 289 AD2d 640, 641[2001] [citation omitted]; see Matter of Camino v Chappaqua Transp., 19 AD3d at 856).While the Board recognized that claimant's accident occurred in the course of his employment, itconcluded that he had deviated from his employment when he stopped for coffee while en routeto his job site and, thus, the injury did not arise out of his employment. We find, however, thatsubstantial evidence did not exist to support the conclusion that claimant was involved in apurely personal pursuit, and conclude that the presumption that his injury arose out of hisemployment has not been rebutted by substantial evidence to the contrary (see Matter ofCamino v Chappaqua Transp., 19 AD3d at 856-857; Matter of Cruz v Karl Ehmer,Inc., 282 AD2d 841, 842 [2001]). Importantly, "[m]omentary deviation[s] from the workroutine for a customary and accepted purpose will not bar a claim for benefits" (Matter ofRichardson v Fiedler Roofing, 67 NY2d at 249) and "[a]ccidents that occur during anemployee's short breaks, such as coffee breaks, are considered to be so closely related to theperformance of the job that they do not constitute an interruption of employment" (Matter of Pabon v New York City Tr.Auth., 24 AD3d 833, 833 [2005]; see Matter of Caporale v State Dept. of Taxation& Fin., 2 NY2d 946 [1957], affg 2 AD2d 91, 92 [1956]; cf. Matter of Marquis v Frank's VacuumTruck Serv., Inc., 29 AD3d 1038, 1039 [2006]; Matter of Balsam v New York StateDiv. of Empl., 24 AD2d 802, 803 [1965] [the claimant deviated from approved coffeebreak]).
Claimant's undisputed testimony is that he briefly stopped at the drive-through for coffee onhis direct route to his assigned off-premises job site, as he had done in the past given the lack of acoffee maker at his office. This constituted a momentary and customary break which did notinterrupt his employment and which can only be classified as reasonable and work-[*3]related under the circumstances, and substantial evidence was notadduced supporting the conclusion that it was a deviation from his employment so as to precludecompensation. As the presumption was not rebutted (see Workers' Compensation Law§ 21), claimant's injury must be found to have arisen out of and in the course of hisemployment. In view of the foregoing, claimant's remaining contentions need not be addressed.
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the decision is reversed,with costs, and matter remitted to the Workers' Compensation Board for further proceedings notinconsistent with this Court's decision.