Opinion
June 19, 1967
Appeal by the claimant from a decision of the Workmen's Compensation Board disallowing his claim on the ground that the accidental injury sustained did not arise out of employment. Claimant, a garage mechanic whose regular hours were 8:00 to 5:00, was working on a bus, tuning the engine, when at 4:40 he decided to put up his tools and stop working for the day. On doing so he noticed a coemployee working on his personally-owned lawnmower and in helping him to adjust the carburetor sustained the injury involved. Claimant, as a basis of recovery, advanced proof that the employer acquiesced in his employees doing personal work on employment time and the board might well have based an award upon a finding of consent and permission but there is also substantial proof that the employer did not so acquiesce and thus the board's resolution of this purely factual dispute against the claimant cannot be disturbed. Nor was the board required to find that fixing the mower was an ordinary incident of a day of employment. Finally, the board did not have to accept claimant's contention that the injury was caused by the coemployee. On the evidence in the record the board could properly find that the coemployee did not cause or even contribute to the accident by either overt act or neglect. Decision affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in a memorandum by Reynolds, J.