IN RE: the Claim of Donald G. PEDRO (2003)

Appeals (1) from a decision of the Workers' Compensation Board, filed July 12, 2001, which ruled that claimant's injury arose out of and in the course of his employment, and (2) from a decision of said Board, filed July 11, 2002, which denied an application by the self-insured employer and its plan administrator for full Board review.

Claimant, a full-time firefighter with the Village of Endicott Fire Department, was seriously injured while repairing his personal vehicle in his fire station's docking bay during on-duty “unstructured time,” when a jack supporting the vehicle failed and the car fell upon him.   The self-insured employer and its plan administrator controverted claimant's claim for workers' compensation benefits, contending, among other things, that claimant's injury did not arise out of and in the course of his employment because he was injured while engaged in a purely personal activity.   A Workers' Compensation Law Judge (hereinafter WCLJ) found that claimant's injury did arise out of and in the course of his employment because personal car repair had been a tolerated activity during firefighters' unstructured on-duty hours.   The Workers' Compensation Board affirmed the WCLJ's decision and the employer and its plan administrator appeal from the Board's decision and from the denial of their application for full Board review.

 It is well settled that an injury is compensable under the Workers' Compensation Law if it arose out of and in the course of employment, whereas purely personal activities are outside the scope of employment and injuries which occur while engaged in such activities are not compensable (see Workers' Compensation Law § 10;  Matter of Richardson v. Fiedler Roofing, 67 N.Y.2d 246, 249, 502 N.Y.S.2d 125, 493 N.E.2d 228 [1986];  Matter of Bigley v. J & R Music Elecs., 269 A.D.2d 667, 667, 702 N.Y.S.2d 474 [2000] ).   The test is “whether the activities are both reasonable and sufficiently work related under the circumstances” (Matter of Richardson v. Fiedler Roofing, supra at 249, 502 N.Y.S.2d 125, 493 N.E.2d 228;  see Matter of Vogel v. Anheuser Busch, 265 A.D.2d 705, 705, 696 N.Y.S.2d 571 [1999] ), which is a factual question for resolution by the Board (see Matter of Cruz v. Ehmer, 282 A.D.2d 841, 842, 724 N.Y.S.2d 777 [2001];  Matter of Bigley v. J & R Music Elecs., supra at 668, 702 N.Y.S.2d 474).

Where, as here, an employee's job entails “intermittent periods of enforced waiting,” the employee “is free to indulge in any reasonable activity during the waiting period” (Matter of Anadio v. Ideal Leather Finishers, 32 A.D.2d 40, 42, 299 N.Y.S.2d 489 [1969], lv. denied 25 N.Y.2d 737, 304 N.Y.S.2d 1025, 251 N.E.2d 556 [1969];  see Matter of Harris v. Poughkeepsie Journal, 289 A.D.2d 640, 641, 733 N.Y.S.2d 548 [2001];  cf.  Matter of Richardson v. Fiedler Roofing, supra at 249, 502 N.Y.S.2d 125, 493 N.E.2d 228).   In light of testimony that it was not unusual for firefighters to repair their personal vehicles during unstructured on-duty time at the firehouse, and that such repairs were tolerated by department officials, the Board was entitled to conclude that claimant's activity, which occurred in the course of his employment while on duty, was reasonable and sufficiently work-related to have arisen out of his employment.

ORDERED that the decisions are affirmed, without costs.

SPAIN, J.

CARDONA, P.J., MERCURE, PETERS and CARPINELLO, JJ., concur.