Claim of Currie v. Self Help Community Services, Inc.

853 employer and one which requires such reporting to a site owned by the employer. To automatically provide portal to portal coverage to either form of employment simply on the basis of the location and/or ownership of the work site and exclude the other employment would be upon its face without a reasonable foundation for discrimination. The key to coverage while in the process of traveling from a residence to a work site is whether or not it is in the course of the employment (see Matter of Freebern v North Rockland CDA, 64 AD2d 300). All employments requiring a presence outside of the residence or home necessitate travel, however, as a matter of law, workers’ compensation coverage is not extended to travel from home to work as a general proposition (Van Gee v Korts, 252 NY 241). Of course, the general rule excluding coverage for travel from the residence to the work site has several exceptions including the ultimate exception when the home itself is considered a work site as an extension of the employment premises. In this particular case the board appears to have found coverage based upon two exceptions—"outside” employees and the payment of travel expenses. The utilization of a denomination such as "outside” employee can in certain cases be misleading. In this case, as in the recent case of Matter of Greene v City of New York Dept, of Social Servs. (44 NY2d 322), the claimant is employed for the purpose of providing services to homeowners in their homes. There the claimant was required to travel from one location to another after her employment had commenced and the primary issue was whether or not the use of an automobile was a deviation from her employment so as not to be in the course of her employment. In the present case the claimant’s duties did not require any travel during the hours of her employment and the travel reimbursement was for the expense of travel. In the absence of any requirement for travel from one work site to another as a part of the claimant’s duties, the board erred as a matter of law in characterizing the claimant as an "outside” employee for purposes of coverage (see Matter of Bennett v Marine Works, supra). To put the matter in another light, there is no substantial evidence to establish that travel was an integral part of the employment and, accordingly, there is no substantial evidence to establish that the accident occurred in the course of the employment as an outside employee. Furthermore, although the record establishes that the claimant received carfare, there is no basis for concluding that walking on a public street from her residence to a fixed place of employment was thereby made a risk of the employment (cf. Matter of Marciniak v Berlitz School of Languages, 43 AD2d 509, app dsmd 34 NY2d 843, affd following remand, 53 AD2d 774). Once employment commences, traveling between different locations is clearly within the contemplation of the Workers’ Compensation Law. The present claimant’s employment did not commence until she boarded a bus and when she fell on the sidewalk she was not within the scope of her employment. The decision should be reversed and the claim dismissed.