IN RE: the Claim of Alfonso PABON (2005)

Appeal from a decision of the Workers' Compensation Board, filed May 17, 2004, which ruled that claimant sustained an accidental injury arising out of and in the course of his employment.

Claimant, a bus driver employed by the New York City Transit Authority (hereinafter the employer), was injured when he was struck by a hit-and-run driver while returning to the bus depot to continue his route after a break at a nearby diner.   Subsequent to a hearing, a Workers' Compensation Law Judge found that claimant's injuries were not compensable because they were not sustained during the course of his employment.   The Workers' Compensation Board reversed, prompting this appeal by the employer, which argues that the Board's decision is not supported by substantial evidence.

 Accidents that occur during an employee's short breaks, such as coffee breaks, are considered to be so closely related to the performance of the job that they do not constitute an interruption of employment (see Matter of Kouvatsos v. Line Masters, 281 A.D.2d 769, 770, 722 N.Y.S.2d 118 [2001];  Matter of Smith v. City of Rochester, 255 A.D.2d 863, 863, 681 N.Y.S.2d 371 [1998];  cf. Matter of Rose v. Verizon N.Y., 304 A.D.2d 990, 990, 761 N.Y.S.2d 100 [2003] ).   Here, substantial evidence supports the Board's determination that claimant's break, for which he was paid and the duration of which was unfixed and premised on the employer's bus scheduling needs, was sufficiently tied to the performance of his duties such that it did not interrupt his employment (see Matter of Harford v. Widensky's, Inc., 154 A.D.2d 821, 822-823, 546 N.Y.S.2d 485 [1989];  Matter of Caporale v. State Dept. of Taxation & Fin., 2 A.D.2d 91, 92, 153 N.Y.S.2d 738 [1956], affd. 2 N.Y.2d 946, 162 N.Y.S.2d 40, 142 N.E.2d 213 [1957] ).   Accordingly, despite the existence of evidence in the record that could reasonably support a contrary result, we will not disturb the Board's determination.

ORDERED that the decision is affirmed, without costs.

MERCURE, J.

CARDONA, P.J., MUGGLIN, ROSE and LAHTINEN, JJ., concur.