IN RE: the Claim of Prena SHYTI (2021)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers' Compensation Board, filed January 6, 2020, which ruled that claimant sustained an accidental injury arising out of and in the course of her employment.

Claimant, an office cleaning person, was on a work break when she slipped on the sidewalk across the street from the building where she was employed.  She applied for workers' compensation benefits, alleging injuries to her head, neck, back, right hip, right shoulder and right elbow.  Following a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ) disallowed the claim, finding that the accident did not arise out of and in the course of employment.  The Workers' Compensation Board affirmed, with one member dissenting.  Upon mandatory review, the full Board reversed the WCLJ's decision, and the employer and its workers' compensation carrier appeal.

We affirm.  “To be compensable under the Workers' Compensation Law, an accidental injury must arise both out of and in the course of a claimant's employment” (Matter of Docking v. Lapp Insulators LLC, 179 A.D.3d 1275, 1276, 116 N.Y.S.3d 440 [2020] [citations omitted];  see Worker's Compensation Law § 10[1];  Matter of Deleon v. Elghanayan, 159 A.D.3d 1244, 1245, 73 N.Y.S.3d 641 [2018]).  “Whether a particular activity is compensable is a factual issue for the Board to resolve, with the test being whether the activity is both reasonable and sufficiently work related under the circumstances” (Matter of Maher v. NYS Div. of Budget, 72 A.D.3d 1380, 1381, 898 N.Y.S.2d 726 [2010] [internal quotations marks, brackets and citations omitted];  see Matter of Marotta v. Town & Country Elec., Inc., 51 A.D.3d 1126, 1127, 857 N.Y.S.2d 340 [2008]).  “There is no requirement that the underlying activity be done at the employer's direction or directly benefit the employer for the resulting injury to be compensable, and 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” (Matter of Capraro v. Matrix Absence Mgt., 187 A.D.3d 1395, 1396, 132 N.Y.S.3d 456 [2020] [internal quotation marks, ellipsis, brackets and citations omitted];  see Matter of Marotta v. Town & Country Elec., Inc., 51 A.D.3d at 1127, 857 N.Y.S.2d 340;  Matter of Kouvatsos v. Line Masters, Inc., 281 A.D.2d 769, 770, 722 N.Y.S.2d 118 [2001]).  “This coffee break rule rests essentially on the theory of constructive control of the employees by the employer during the off-premises activity” (Matter of Kouvatsos v. Line Masters, Inc., 281 A.D.2d at 770, 722 N.Y.S.2d 118 [internal quotation marks, ellipsis and citation omitted];  accord Matter of Potter v. VM Paolozzi Imports, Inc., 91 A.D.3d 1016, 1016, 935 N.Y.S.2d 918 [2012]).

Claimant worked from 5:00 p.m. to 12:30 a.m. and was provided under her union contract with one paid “[15] minute relief/lunch period” per day.  There were no restrictions on what claimant could do on her break and she was allowed to leave the building.  On the night in question, claimant was on her 15–minute break and had crossed the street to smoke a cigarette and stop at a pizza parlor.¹  She had finished smoking and was walking toward the pizza parlor when she slipped and fell.  Under these circumstances, the Board's finding — that claimant's brief off-premises departure from work was reasonable and sufficiently work-related so as to not constitute an interruption of her employment — is supported by substantial evidence and its determination that the accident arose out of and in the course of her employment will not be disturbed (see Matter of Potter v. VM Paolozzi Imports, Inc., 91 A.D.3d at 1017, 935 N.Y.S.2d 918;  Matter of Kontogiannis v. Nationwide PC, 51 A.D.3d 1180, 1181–1182, 857 N.Y.S.2d 803 [2008];  Matter of Marotta v. Town & Country Elec., Inc., 51 A.D.3d at 1128, 857 N.Y.S.2d 340).

ORDERED that the decision is affirmed, without costs.

FOOTNOTES

1.   Claimant testified that she and her coworkers were not allowed to smoke in front of the building where they worked and that they had been instructed by the building supervisor to go across the street to smoke.

Clark, J.

Lynch, J.P., Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur.