IN RE: the Claim of Julio FIGUEROA

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IN RE: the Claim of Julio FIGUEROA, Respondent, v. PERFECT SHOULDER COMPANY, INC., et al., Appellants. Workers' Compensation Board, Respondent.

Decided: December 31, 2009

Before: CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and KANE, JJ. Gregory J. Allen, State Insurance Fund, Melville (William O'Gorman of counsel), for appellants. Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), for Workers' Compensation Board, respondent.

Appeal from a decision of the Workers' Compensation Board, filed July 15, 2008, which ruled that claimant sustained a compensable injury and awarded workers' compensation benefits.

Claimant worked as a supervisor for the employer and was required to open the factory he worked in each day by 7:00 A.M., but was prohibited from doing so earlier than 6:45 A.M. Having arrived early on October 9, 2006, claimant was sitting in his parked car on a public street in front of the workplace and was rendered a quadriplegic when his automobile was struck from behind by another vehicle. His subsequent application for workers' compensation benefits was approved by a Workers' Compensation Law Judge, who determined that claimant's injuries arose out of and in the course of his employment. Upon review, the Workers' Compensation Board upheld that determination, prompting this appeal by the employer and its workers' compensation carrier.

We affirm. Generally, accidents that occur in public areas away from the workplace and outside of work hours are not compensable (see Matter of Littles v. New York State Dept. of Corrections, 61 A.D.3d 1266, 1267, 877 N.Y.S.2d 505 [2009] ). As the accident here occurred near the workplace, it fell within a “gray area” where the risks of travel merge with those of employment (see Matter of Husted v. Seneca Steel Serv., 41 N.Y.2d 140, 144, 391 N.Y.S.2d 78, 359 N.E.2d 673 [1976]; Matter of Littles v. New York State Dept. of Corrections, 61 A.D.3d at 1267, 877 N.Y.S.2d 505; Matter of Moore v. Ogden Allied, 284 A.D.2d 624, 625, 726 N.Y.S.2d 752 [2001] ). “Recovery has generally been upheld for injuries sustained while traveling to and from work along a normal access route where some reasonable nexus” exists between the employment and the risk which led to the accident (Matter of Moore v. Ogden Allied, 284 A.D.2d at 625-626, 726 N.Y.S.2d 752; see Matter of Husted v. Seneca Steel Serv., 41 N.Y.2d at 145, 391 N.Y.S.2d 78, 359 N.E.2d 673; Matter of Tompkins v. Morgan Stanley Dean Witter, 1 A.D.3d 695, 696, 766 N.Y.S.2d 923 [2003] ). If the Board's resolution of that issue is supported by substantial evidence, it will be upheld (see Matter of Tompkins v. Morgan Stanley Dean Witter, 1 A.D.3d at 696, 766 N.Y.S.2d 923).

Here, claimant was ordered by his employer to open the factory no later than 7:00 A.M. to prepare work for other employees. To fulfill that duty in the face of unpredictable travel conditions, claimant left home early enough to always ensure a timely arrival. As a result, claimant frequently arrived at work early, but was prohibited by his employer from entering the factory prior to 6:45 A.M. It is undisputed that claimant's accident occurred while he was waiting for the appointed time to enter the factory. Given that the employer's directions compelled claimant to arrive at work early and wait-and the accident occurred during that wait-we are satisfied that substantial evidence supports the Board's determination that a causal nexus existed between the employment and the injury (see Matter of Flanagan v. Leonard Elec. Co., 274 App.Div. 1081, 1081, 85 N.Y.S.2d 649 [1949]; see e.g. Matter of Kane v. New York State Dept. of Ins., 27 A.D.2d 344, 344-345, 279 N.Y.S.2d 229 [1967]; cf. Matter of Brienza v. Le Chase Constr. Corp., 17 A.D.2d 83, 84-85, 230 N.Y.S.2d 362 [1962]; Matter of Carrasquilla v. Penn Akron Co., 10 A.D.2d 135, 136, 197 N.Y.S.2d 682 [1960] ). Accordingly, we perceive no basis upon which to disturb the Board's decision.

ORDERED that the decision is affirmed, without costs.

MERCURE, J.

CARDONA, P.J., SPAIN, LAHTINEN and KANE, JJ., concur.

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