IN RE: the Claim of Charles MACK (2007)

Appeal from a decision of the Workers' Compensation Board, filed January 23, 2006, which ruled that claimant did not sustain an accidental injury arising out of and in the course of his employment.

On July 24, 2004, claimant, a hospital care investigator assigned to his employer's patient accounts department, injured his left ankle while playing basketball at “Finance Family Fun Day,” an annual picnic for department employees organized by the department's managers.  Following a hearing regarding his claim for workers' compensation benefits, a Workers' Compensation Law Judge determined that claimant's injury was work related.  Upon review, that determination was reversed by the Workers' Compensation Board, prompting this appeal.

 Inasmuch as claimant's employer neither required that he attend “Finance Family Fun Day” nor compensated him for doing so, his injury is compensable only if the employer sponsored the day's activities “through overt encouragement of employee participation” (Matter of Eddy v. Rochester–Genesee Regional Transp. Auth., 248 A.D.2d 769, 770, 669 N.Y.S.2d 699 [1998] [emphasis added];  see Workers' Compensation Law § 10[1] ).  We note that “overt encouragement ․ require[s] more than ‘notices of the activity on the company bulletin board, announcement in its news letter or even use of its equipment to duplicate notices of or about the activity’ ” (Matter of De Carr v. New York State Workers' Compensation Bd., 151 A.D.2d 935, 936, 543 N.Y.S.2d 206 [1989], [citation omitted] ).  Similarly, the fact that an activity is held to promote “morale of the office” is not a basis for a finding of compensability (Minkowitz, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 64, Workers' Compensation Law § 10, at 414, 416;  see Matter of Dorosz v. Green & Seifter, 92 N.Y.2d 672, 676, 685 N.Y.S.2d 406, 708 N.E.2d 162 [1999] ).

 Here, although the employer paid for food at the picnic and allowed flyers advertising the event to be distributed throughout the department, employees were charged a $7 admission fee to offset the cost of the event which, although limited to department personnel, was held away from the employer's premises on a day that claimant did not typically work.  Furthermore, there is nothing in the record to indicate that the employer expressly invited or suggested that employees participate in any of the activities, including the basketball game during which claimant was injured, or that the employer provided equipment for the activities (cf. Matter of Bogert v. E.B. Design Air, 38 A.D.3d 1125, 1125–1126, 833 N.Y.S.2d 279 [2007];  Matter of Kobre v. Camp Mogen Avraham, 255 A.D.2d 636, 637–638, 679 N.Y.S.2d 753 [1998] ).  In our view, the record contains substantial evidence supporting the Board's conclusion that claimant's injury did not arise out of and in the course of his employment (see Matter of Koch v. Rockland County Sheriff's Dept., 289 A.D.2d 865, 866, 734 N.Y.S.2d 697 [2001], lv. denied 98 N.Y.2d 601, 744 N.Y.S.2d 761, 771 N.E.2d 834 [2002];  Matter of Farnan v. New York State Dept. of Social Servs., 187 A.D.2d 864, 864–865, 589 N.Y.S.2d 713 [1992];  Matter of De Carr v. New York State Workers' Compensation Bd., supra at 936, 543 N.Y.S.2d 206) and, thus, the determination must be affirmed notwithstanding evidence that could support a contrary result (see Matter of Baker v. Sentry Group, 269 A.D.2d 668, 669, 703 N.Y.S.2d 299 [2000] ).

ORDERED that the decision is affirmed, without costs.

MERCURE, J.P.

CREW III, PETERS, ROSE and LAHTINEN, JJ., concur.