Opinion
November 16, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by the employer and its carrier from a decision and award of the Workmen's Compensation Board. The sole question on appeal is whether claimant's accident arose out of and in the course of his employment. The basic facts are not disputed. The employer, a co-operative housing corporation, employed claimant as a painter. Claimant worked a full day on January 2, 1958 but on Friday, January 3, 1958, complained of illness and left work after four hours. Claimant did not work Monday or Tuesday, January 6 or 7, but called his employer on January 6 and was told to report when he was able. On Wednesday, January 8, claimant reported to work but he did not start to work because he did not feel well and after telling Mr. Lippman, manager of appellant employer, he would be unable to work that day went to the boiler room portion of the paint shop to await his foreman. He waited till 12:00 and left for lunch returning at 12:55. After an hour of further search for the foreman he left for home. Before reaching home he decided to return to see the foreman to tell him he would need a few weeks to rest before resuming work and to pick up his work clothes in order to have them cleaned during his absence. He returned just after 3:00 P.M. and at about 3:45 P.M. he fell over a ladder in the boiler room area sustaining the injuries complained of. The evidence indicates that despite his age he was considered by his employer to be an excellent painter. It is also evident that certain domestic problems which caused claimant great concern were known by his employer and that previous losses of time had been tolerated. There is no question that claimant had not worked for the appellant employer for 2 1/2 working days prior to January 8, 1958 and that although he was on the premises on January 8, he performed no work on this day. The board, however, found that claimant's presence on the premises was directed by motives which were for the benefit of the employer and therefore coverage should be granted ( Matter of Younger v. Motor Cab Transp. Co., 260 N.Y. 396). The board appeared impressed with the fact that the managing agent of the employer thought highly of his skill as a painter and that he was told to return to work when he could. These facts led the board to conclude that he had not been discharged or separated from work despite the employer's testimony that he had been separated from the payroll. On this basis the board concluded that claimant's return to his place of employment was motivated by a feeling of duty to tell his immediate superior of his need for two weeks leave of absence and to secure his work clothes to have them cleaned during such period and thus was for the benefit of the employer. This determination has support in the recent case of Matter of Moskowitz v. Granata ( 9 A.D.2d 310). In that case a taxi driver after having parked his cab in the garage at the end of the day's run and having left the premises remembered he had left his photo identification in the cab and that he had to tell his boss that he would not be in the next day. On his return to the cab he slipped and fell on ice in the garage driveway. This court in upholding an award and finding that the accident occurred in the course of his employment stating at page 312: "If the board believed he had gone back to the garage office to report to his employer's agent about his next working hours, the return to the premises could be found to have been in the course of employment." Whether claimant would be able to return to work in the near future, which is presumably what was meant by his earlier understanding with Mr. Lippman to come in and work when he was able, or would not be in for a considerable period of time surely would make a difference to the employer scheduling his work load or could reasonably be so assumed. The board found that despite the fact that claimant was separated from the payroll, a mere auditing procedure, his employment had not ceased and was continued since the employer's agent told him to return to work when he was able. There is substantial evidence to support this determination. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.