Opinion
94264.
Decided and Entered: December 4, 2003.
Appeal from a decision of the Workers' Compensation Board, filed October 18, 2002, which ruled that claimant did not sustain an accidental injury arising out of and in the course of her employment, and denied her claim for workers' compensation benefits.
Helbock, Nappa Gallucci, New York City (Robert J. Helbock of counsel), for appellant.
Jones, Jones, Larkin O'Connell, New York City (Joju J. Thomas of counsel), for Victory Motor Inn and another, respondents.
Before: Cardona, P.J., Mercure, Peters, Spain and Carpinello, JJ.
MEMORANDUM AND ORDER
On October 14, 1996, claimant was involved in a physical altercation with a coworker while working as a housekeeper at a hotel. Due to injuries sustained to her back and neck, she filed a claim for workers' compensation benefits, which was controverted by the employer. Following a hearing, a Workers' Compensation Law Judge found that claimant sustained a work-related injury and awarded her benefits. The Workers' Compensation Board reversed this decision, concluding that the assault was unrelated to claimant's employment and, therefore, her injury did not arise out of or in the course of her employment. Claimant now appeals.
Initially, we note that "`[i]n determining whether the victim of an assault is entitled to workers' compensation benefits, the test is whether the assault originated in work-related differences or from pure personal animosity between the combatants'" (Matter of Blair v. Bailey, 279 A.D.2d 941, 942, lv dismissed 96 N.Y.2d 824, quotingMatter of Baker v. Hudson Val. Nursing Home, 233 A.D.2d 608, 608,lv denied 89 N.Y.2d 813; see Matter of Russo v. HRT Inc. of Orange County, 246 A.D.2d 933, 933, lv denied 91 N.Y.2d 815). This is a question of fact to be decided by the Board (see Matter of Bell v. Utica Corp., 306 A.D.2d 604, 606; Matter of Russo v. HRT Inc. of Orange County, supra at 933). While an award is appropriate if "`there is any nexus, however slender, between the motivation for the assault and the employment'" (Matter of Baker v. Hudson Val. Nursing Home, supra at 608, quoting Matter of Seymour v. Rivera Applicances Corp., 28 N.Y.2d 406, 409), the Board is justified in denying an award in the absence of such a nexus (see e.g. Matter of Turner v. F.J.C. Sec. Servs., 306 A.D.2d 649; Matter of McMillan v. Dodsworth, 254 A.D.2d 619).
In the instant case, substantial evidence supports the Board's finding that the assault on claimant arose from personal hostilities unrelated to her employment. Claimant testified that she had known the coworker who assaulted her for five or six years and that they had been friends. Claimant indicated that, upon arriving at work on the date in question, she had a brief conversation with her boss during which she referred to the coworker as his girlfriend, an assumption she made based upon observations and contact outside of work. Approximately 10 minutes following that exchange, the coworker approached claimant and assaulted her. Inasmuch as the record supports the Board's conclusion that the assault was solely motivated by a falling out among friends and unconnected with claimant's employment, we decline to disturb its decision (compare Matter of Baker v. Hudson Val. Nursing Home, supra).
Cardona, P.J., Mercure, Peters and Carpinello, JJ., concur.
ORDERED that the decision is affirmed, without costs.