Aucompaugh v. General Electric, 111 A.D.2d 1073

Aucompaugh v. General Electric

111 A.D.2d 1073 | N.Y. App. Div. | 1985

Casey, J.

Appeal from a decision of the Workers’ Compensation Board, filed May 30, 1984, which ruled that claimant sustained a compensable injury and awarded benefits.

The employer and its carrier contend that claimant’s injury occurred as a result of horseplay and, therefore, did not arise out *1074of and in the course of employment. Claimant was injured when he fell to the floor while attempting to do a handstand on the arms of a swivel chair. The Workers’ Compensation Board found that claimant and his co-workers regularly did physical exercises, including push-ups and chin-ups, during their work breaks and that the employer was aware of and allowed such exercises. These findings are supported by substantial evidence in the record. The Board also concluded “that young men, whose jobs call for expenditures of physical energy, cannot be expected, during slack periods, to sit in idleness and gossip; that the employer must expect that they will engage in some form of activity and that the risk was a risk of the employment”. In these circumstances, the Board’s decision finding that the injury occurred in the course of and arose out of the employment must be affirmed, despite the employer’s argument that claimant’s attempt to do a handstand on a swivel chair was an isolated instance of foolery outside the scope of the physical exercise allowed by the employer (see, Matter of Lubrano v Malinet, 65 NY2d 616).

The employer relies heavily upon claimant’s admission that he was engaged in horseplay and upon his original misrepresentation of the manner in which the injury occurred. These circumstances, however, are irrelevant in view of the Board’s finding that the horseplay was sufficiently related to the employment as to render the injury compensable.

Decision affirmed, with costs to the Workers’ Compensation Board. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.