Claim of Brooks v. New York Telephone Co.

Appeal from a decision of the Workers’ Compensation Board, filed March 27, 1981, which held that claimant’s accident arose out of and in the course of her employment. Claimant was injured when she slipped on snow while stepping out of a co-worker’s car which was parked in a privately owned lot adjacent to the employer’s premises. The incident occurred at approximately 5:30 a.m. on a workday scheduled to begin at 6:00 a.m. The board decision stated: “Upon review, the Board Panel finds based on claimant’s testimony, that claimant was in the precincts of her employment when she sustained her accident.” The employer contends that the injury did not arise out of and in the course of employment. It. is undisputed that the employer neither owned the lot, nor was under, a duty to maintain it. Nonetheless, claimant testified that the employer designated an area within the lot for its employees to utilize, and reimbursed certain employees for their parking expenses. The co-worker’s car was assigned to spot number one in the designated section. In our view, the board could properly conclude that the need for claimant to cross the snow-covered parking lot constituted a risk of employment not shared by the general public (see Matter of Husted v Seneca Steel Serv., 41 NY2d 140, and cases cited therein; Matter of Neely v G. W. Morrison, Inc., 79 AD2d 803). Clearly, claimant had arrived to commence her workday and was in the process of entering the employment premises when injured. This case comes within the delineated “gray area” pronounced in Husted (supra, p 144) where an employee’s proximity to the employment situs brings the accident within the range of the employment. Finally, contrary to the employer’s contention, the board properly relied on facts set forth at an evidentiary hearing before the board (see 12 NYCRR 300.13 [a]). Since there is substantial evidence to support the board’s decision, it must be affirmed. Decision affirmed, with costs to the Workers’ Compensation Board. Sweeney, J. P., Main, Casey and Weiss, JJ., concur.