Opinion
April 29, 1964
Appeal by the employer and its carrier from a decision and award of benefits on the ground that there is no substantial evidence that the accident arose out of and in the course of employment. Claimant was injured when he was struck over the head by a fellow worker with an empty wooden beer case. There is a conflict of testimony as to the events which precipitated this incident but appellants do not dispute here the board's conclusion that the argument which initiated the dispute was work connected. Rather they urge that because claimant had been ordered to return to his work after the initial altercation with his assailant, the incident here involved was not connected with employment but was a purely personal matter. We cannot agree. Claimant testified that after they were separated from their initial struggle his assailant immediately ran toward the locker room, some 100 feet away, threatening to get a knife and that he was assaulted as he pursued him to prevent such action. Thus on the instant record, the board could properly find that the events here involved transpired in such close proximity time wise that there was no occasion for a "cooling-off period". (See 1 Larson, Workmen's Compensation Law, § 11.13, p. 118.) Matter of Schneck v. Piel's Brewery ( 11 A.D.2d 826) is factually inapposite to the present case. Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.