MATTER OF BIGLEY v. J & R MUSIC ELECTRONICS


269 A.D.2d 667 (2000)

702 N.Y.S.2d 474

In the Matter of the Claim of EDWARD BIGLEY, Appellant, v. J & R MUSIC ELECTRONICS et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent.

Appellate Division of the Supreme Court of the State of New York, Third Department.


Graffeo, J.

Claimant, a security guard, filed a claim for workers' compensation benefits alleging that he sustained an ankle injury while demonstrating a boxing maneuver to a co-worker. According to claimant, he attempted the maneuver while waiting for the elevator to arrive after completing his scheduled employment shift and punching out on the employer's time clock. Concluding that the injury resulted from a purely personal activity undertaken after claimant's work day was complete, the Workers' Compensation Board found that claimant's injury did not arise out of and in the course of his employment. Claimant appeals.

For an injury to be compensable under the Workers' Compensation Law, it must have arisen both out of and in the course of employment (see, Workers' Compensation Law § 10). Inasmuch as claimant's injury occurred within the reasonable amount of time it took him to leave the employer's premises after completing his designated shift, the injury is deemed to have occurred within the course of employment and, therefore, claimant was entitled to a presumption that the injury also arose out of his employment (see, Matter of Vogel v Anheuser-Busch, 265 A.D.2d 705).

In our view, however, the employer adequately rebutted the presumption with evidence that claimant's injury resulted from a personal activity which was not sufficiently work related under the circumstances (see, Matter of Richardson v Fiedler Roofing, 67 N.Y.2d 246; Matter of Roggero v Frontier Ins. Group, 250 A.D.2d 1011; Matter of Torio v Fisher Body Div., 119 A.D.2d 955, 956). Unlike the cases relied upon by claimant involving employees who were injured during an idle period while waiting for work to resume or as the result of a condition on the employer's premises (see, e.g., Matter of McGrath v Chautauqua County Home, 31 A.D.2d 557; Matter of Bletter v Harcourt Brace & World, 30 A.D.2d 601, affd 25 N.Y.2d 755), claimant's own testimony reveals that no further work was contemplated on the day of the accident, his boxing demonstration had no work-related purpose and his injury was not caused by the employer's failure to provide a safe means of egress from the place of employment (see, Matter of Bashwinger v Cath-Fran Constr. Co., 200 A.D.2d 791, lv denied 83 N.Y.2d 757). Whether claimant's activities in executing the boxing maneuver were within the course of his employment or purely personal in nature was a factual determination for the Board's resolution (see, Matter of Richardson v Fiedler Roofing, supra; Matter of D'Accordo v Spare Wheels & Car Shoppe, 257 A.D.2d 966) and, in light of the evidence that claimant's activities were wholly unrelated to his work or departure therefrom (see, Matter of Roggero v Frontier Ins. Group, supra; cf., Matter of Grimaldi v Shop Rite Big V, 90 A.D.2d 608), we do not find the Board's decision to be unsupported by substantial evidence.

Ordered that the decision is affirmed, without costs.


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