Claim of Sarriera v. Axel Electronics, Inc.

Herlihy, J. Appeal from a decision of tbe Workmen’s Compensation Board in favor of tbe claimant and a subsequent decision awarding benefits. Tbe board reversed tbe decision of the Referee disallowing tbe claim as not arising out of and in tbe course of employment and remanded to tbe Referee who, in turn, made an award. The facts are not in dispute. Tbe claimant in charge of the operation of an impregnator oven, while waiting for materials to be processed and taken out of tbe oven, became involved in a friendly discussion with a fellow employee over the latter’s weight “getting kind of heavy”, whereupon the claimant picked up his eoemployee, which act resulted in the claimant falling and injuring his leg. The board found “ on the evidence that the lifting of tbe co-employee by tbe claimant could be reasonably considered a casual indulgence brought about by friendly conversation during a momentary lull in the work, and under tbe circumstances would not be a deviation from tbe employment, but an episode to which the employment lent some stimulus. It is therefore found that when claimant injured himself from tbe lifting, be suffered an accidental injury arising out of and in tbe course of employment.” Such type of accident is compensable when so found by tbe board. In Matter of Leonbruno v. Champlain Silk Mills (229 N. Y. 470, 472 [1920]), tbe claimant was struck in the eye by an apple thrown by a fellow employee. The Court of Appeals, in affirming the award, stated: “ Tbe claimant was injured, not merely while be was in a factory, but because be was in a factory, in touch with associations and conditions inseparable from factory life. Tbe risks of such associations and conditions were risks of the employment (Thom v. Sinclair [1917 A. C. 127]; Matter of Redner v. Faber & Son, 223 N. Y. 379).” Where an employee is required by the nature of his job to undergo intermittent periods of enforced waiting be is “ not required to remain immobile * * * He [is] at liberty to indulge in any reasonable activity during the waiting period * * * Therefore, tbe only issue in tbe ease [is] whether or not [tbe particular activity] was a reasonable activity under the circumstances.” (Matter of Ingraham v. Lane Constr. Corp., 285 App. Div. 572, 573, Foster, J., affd. 309 N. Y. 899.) Tbe majority of tbe decisions cited by the appellants are those where awards were affirmed. (See Matter of Heitz v. Ruppert, 218 N. Y. 148; Matter of Industrial Comr. v. McCarthy, 295 N. Y. 443; Matter of Johnson v. Loew’s Inc., 7 A D 2d 795, affd. 8 N Y 2d 757; Matter of Lang v. Franklin Ry. Supply Co., 272 App. Div. 988, mot. for lv. to app. den. 297 N. Y. 1036; Matter of Piatek v. Plymouth Rock Provision Co., 15 A D 2d 405.) Matter of Ognibene v. Rochester Mfg. Co. (272 App. Div. 1077, revd. 298 N. Y. 85) [593] was remitted for further testimony. This court has on occasions found the Ogivibene decision not controlling. (See Matter of Johnson v. Loew’s Inc., supra; Matter of Piatek v. Plymouth Rock Provision Co., supra.) In these circumstances, the act of the claimant could be reasonably anticipated as a work-related incident and sufficient to sustain the board’s findings of accidental injury arising out of and in the course of employment. (See Matter of Putnam v. New York State Dept. of Public Works, 24 A D 2d 801.) Decision affirmed, with costs to the Workmen’s Compensation Board. Gibson, P. J., Reynolds, Taylor and Aulisi, JJ., concur.