Opinion
2011-11-17
In the Matter of the Claim of Yelena BORGEAT, Respondent, v. C & A BAKERY, Appellant, et al., Respondent.Workers' Compensation Board, Respondent.
John F. Clennan, Ronkonkoma, for appellant. Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel), for Workers' Compensation Board, respondent.
John F. Clennan, Ronkonkoma, for appellant. Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel), for Workers' Compensation Board, respondent.
Before: MERCURE, J.P., SPAIN, LAHTINEN, MALONE JR. and EGAN JR., JJ.
MERCURE, J.P.
Appeal from a decision of the Workers' Compensation Board, filed March 25, 2010, which ruled that decedent's death arose out of and in the course of his employment, and awarded workers' compensation benefits.
In October 2006, claimant's husband (hereinafter decedent) was employed as a delivery driver for the employer. On a Saturday afternoon, after his regularly scheduled work shift had concluded, decedent was involved in a motor vehicle accident that resulted in his death. Alleging that decedent was on an errand for the employer after his regular work hours, claimant sought workers' compensation death benefits. Following lengthy proceedings, a Workers' Compensation Law Judge determined that decedent's death was causally related to his employment and awarded death benefits. Upon review, the Workers' Compensation Board affirmed that decision, and the employer now appeals.
We affirm. For an employee to be entitled to workers' compensation benefits, an injury must arise out of and in the course of employment and, generally, injuries sustained while traveling to and from a place of employment are not compensable ( see Workers' Compensation Law § 10 [1]; Matter of Carroll v. Fagan, Inc., 82 A.D.3d 1463, 1463, 919 N.Y.S.2d 235 [2011]; Matter of Davis v. Labor Ready, 69 A.D.3d 1214, 1215, 891 N.Y.S.2d 759 [2010] ). However, an exception exists when the employee is performing a “special errand” that was both encouraged by the employer and from which it derived a benefit ( Matter of Neacosia v. New York Power Auth., 85 N.Y.2d 471, 478, 626 N.Y.S.2d 44, 649 N.E.2d 1188 [1995]; see Matter of Davis v. Labor Ready, 69 A.D.3d at 1215, 891 N.Y.S.2d 759). Inasmuch as the compensability of an injury “turns on the facts of a given case, the ... Board is afforded ‘wide latitude’ in deciding whether the employee was engaged in a special errand” ( Matter of Neacosia v. New York Power Auth., 85 N.Y.2d at 478, 626 N.Y.S.2d 44, 649 N.E.2d 1188, quoting Matter of Richardson v. Fiedler Roofing, 67 N.Y.2d 246, 249, 502 N.Y.S.2d 125, 493 N.E.2d 228 [1986]; see Matter of Gioia v. Middletown School Dist., 48 A.D.3d 841, 842, 851 N.Y.S.2d 284 [2008] ).
Here, testimony by both the employer and decedent's family established that, on occasion, the employer would request that decedent deliver special order cakes to a certain restaurant on his way home from work. The record establishes that the site of the accident was a two-minute drive from the restaurant to which decedent would deliver the cakes. Furthermore, decedent was traveling that day in an automobile borrowed from a friend, and both the friend and decedent's daughter testified that, upon inspecting the car after the accident, they discovered a cake box bearing the name of the bakery that made the special order cakes. Thus, substantial evidence supports the Board's determination that decedent's death arose out of and in the course of his employment.
ORDERED that the decision is affirmed, without costs.