IN RE: the Claim of Joseph CARDONE III

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Joseph CARDONE III, Appellant, v. INTERSTATE DRYWALL et al., Respondents. Workers' Compensation Board, Respondent.

Decided: December 30, 2010

Before:  MERCURE, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ. Mark L. Schulman, Monticello, for appellant. Ryan, Roach & Ryan, L.L.P., Kingston (Jill M. Johnson of counsel), for Interstate Drywall and another, respondents.

Appeal from a decision of the Workers' Compensation Board, filed February 20, 2009, which ruled that claimant's injury did not arise out of and in the course of his employment and denied his claim for workers' compensation benefits.

Claimant, a carpenter, sought workers' compensation benefits for injuries he sustained in a motor vehicle accident that occurred while he was traveling home from work on November 14, 2005.   Following a hearing, a Workers' Compensation Law Judge ruled that claimant was an outside employee in travel status at the time of the accident and, thus, his injuries arose out of and in the course of his employment.   Upon review, the Workers' Compensation Board reversed.   Claimant appeals.

 In Matter of Wills v. Christian Nursing Registry, 280 A.D.2d 810, 720 N.Y.S.2d 281 [2001], this Court cited apparent inconsistencies in Board decisions applying the “outside employee” exception to the general rule that injuries sustained while traveling to and from a place of employment are not compensable (see Matter of Neacosia v. New York Power Auth., 85 N.Y.2d 471, 475, 626 N.Y.S.2d 44, 649 N.E.2d 1188 [1995] ).   There, we remitted the matter so the Board could render a decision consistent with established precedent or provide a rational explanation for its failure to do so (Matter of Wills v. Christian Nursing Registry, 280 A.D.2d at 812, 720 N.Y.S.2d 281).   In this case, the Board's decision indicates that—prompted by our decision in Wills—it has formulated a rule whereby employees who do not permanently work at a fixed location, but nonetheless work at a particular work site for an extended period of time, such that the assigned work site is rendered a fixed location, are not to be considered outside employees (see e.g. Matter of Total Facility Solutions, Inc., 2008 WL 2631747, 2008 NYWCLR LEXIS 6381 [WCB No. 50611217, June 26, 2008];  Matter of Partners in Care, 2006 WL 2849036, 2006 NYWCLR LEXIS 8726 [WCB No. 00520830, Sept. 26, 2006];  Matter of M & W Elec., Inc., 2006 WL 196445, 2006 NYWCLR LEXIS 6 [WCB No. 29621024, Jan. 3, 2006] ).

 We have no quarrel with this rule (see generally Matter of Neacosia v. New York Power Auth., 85 N.Y.2d at 475, 626 N.Y.S.2d 44, 649 N.E.2d 1188;  Matter of Bennett v. Marine Works, 273 N.Y. 429, 432, 7 N.E.2d 847 [1937];  Matter of Bobinis v. State Ins. Fund, 235 A.D.2d 955, 956, 653 N.Y.S.2d 408 [1997] ) and, as applied here, find no basis upon which to disturb the Board's determination that claimant was not an outside employee.   Indeed, on the day of the accident, claimant was assigned to work at the Fort Hamilton Army Base, a fixed location at which he had been working steadily for the prior four months, although occasionally during this time period he would be assigned to report to a different work site for the day.   He left the base when his shift ended at 3:00 P.M., and the accident occurred approximately 40 minutes later.   Claimant was driving his own car—for which he did not receive a mileage reimbursement—and intended to drive straight home;  claimant was not performing a special errand or engaged in any other work-related activities on behalf of the employer.   Accordingly, substantial evidence supports the conclusion that claimant's injuries did not arise out of and in the course of his employment (see Matter of Engle v. Reale Constr. Co., Inc., 15 A.D.3d 761, 762–763, 790 N.Y.S.2d 255 [2005] ).

ORDERED that the decision is affirmed, without costs.



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