71 A.D.2d 754 | N.Y. App. Div. | 1979
—Appeals from decisions of the Workers’ Compensation Board, filed August 1, 1977 and May 3, 1978, as amended by decisions filed June 22, 1978 and October 5, 1978. On November 22, 1975 claimant injured his arm while playing football with coemployees during their lunch hour in the employer’s parking lot. The record revealed that employees, including supervisory personnel, engaged in various athletic activities in the past on the employer’s premises. Employees had the option of eating lunch on or off the premises. If they left the premises on their lunch hour, they were required to punch out; if they remained, they were not required to punch out. Employees who stayed on the premises during lunch were subject to call in the event of an emergency. Although the employer did not sponsor the various athletic activities, the testimony disclosed that employees were not informed that such activities were prohibited. By decision filed October 5, 1978, the board amended its decision filed August 1, 1977 to read as follows: "After review, the Board finds on the basis of the credible testimony, including that of the foreman, Mr. Gastowski, that the employer, through its supervisory personnel, was aware that the employees engaged in various athletic activities and ball playing during lunch on the employer’s premises, and that such supervisory personnel had participated in such activities and were not discouraged. The Board finds that the claimant was in the course of employment on November 22, 1975 when he broke his arm while playing football on employer’s parking lot, constituting an accidental injury arising out of and in the course of employment.” The board’s decision is supported by substantial evidence (Matter of Ruiz v Deldan Design, 27 AD2d 774; Matter of Brown v United Servs. for Air, 273 App Div 932, affd 298 NY 901; 1A Larson, Workmen’s Compensation Law, §§22.00, 22.10, 22.11, 22.12). Decisions affirmed, with costs to the Workers’ Compensation Board against the employer and its insurance carrier. Mahoney, P. J., Greenblott, Kane and Mikoll, JJ., concur; Main, J., not taking part.