Claim of Rosen v. First Manhattan Bank

White, J. Appeals from a decision and an amended decision of the Workers’ Compensation Board, filed December 30, 1991 and February 10, 1993, which ruled that the death of claimant’s decedent was a compensable accident. When decedent arrived at the office building where he worked at about 6:30 a.m. on April 15, 1986, he was approached by Roger Proano, a coemployee. Instead of going to the 17th floor where their employer’s offices were located, the men rode the elevator to the 18th floor and went to that floor’s stairwell. At that point, Proano allegedly asked decedent for a $200 loan. Decedent refused and, according to Proano, made a vile remark that infuriated him, whereupon Proano murdered decedent. Following a hearing on claimant’s claim for death benefits, the Worker’s Compensation Law Judge determined that the fatal assault arose out of and in the course of decedent’s employment. The Workers’ Compensation Board affirmed and this appeal by the employer ensued. It is axiomatic that to be compensable under the provisions of the Workers’ Compensation Law, an injury must arise out of the employment and it must arise in the course of employment (see, Matter of Koerner v Orangetown Police Dept., 68 NY2d 974, 974-975). Inasmuch as the course of employment is not limited to the exact time when an employee commences his duties, but rather encompasses a reasonable amount of time for the employee to enter his place of employment prior to the beginning of his shift (see, Matter of Voight v Rochester Prods. Div., GMC, 125 AD2d 799; Matter of Torio v Fisher Body Div. — General Motors Corp., 119 AD2d 955), the Board’s finding that the death occurred during the course of employment is supported by substantial evidence because decedent was due at work at 6:30 a.m. Having determined that the fatal accident occurred in the [865] course of employment, the Board relied on the presumption in favor of compensability found in Workers’ Compensation Law § 21 as the basis for its decision that the assault also "arose out of’ the employment. In order to overcome this presumption, the employer must present substantial evidence to the contrary which, as a matter of law, precludes the Board from crediting any explanation for the assault except that offered by the employer (see, Matter of Iacovelli v New York Times Co., 124 AD2d 324). The test to determine the compensability of injuries sustained in an assault is whether the assault originated in work-related differences or purely from personal animosity between the combatants (see, Matter of Privatera v Yellow Cab Co., 158 AD2d 835). This is a question of fact for the Board and, if an award is made, it must be sustained so long as there is any nexus, however slender, between the motivation for the assault and the employment (see, Matter of Seymour v Rivera Appliances Corp., 28 NY2d 406, 409). In this case the nexus is provided by the fact that decedent and Proano were coemployees (see, supra). The only evidence presented by the employer that the assault arose from personal animosity was Proano’s explanation which the Board, as is its province (see, Matter of Russell v Linens Plus, The Linen Mill Outlet, 188 AD2d 748), found not credible based on the opinion of the police detective who investigated this crime that Proano was not truthful. Without this evidence there is no proof of personal animosity. Therefore, we find that the employer did not overcome the presumption in favor of compensability. Accordingly, we affirm. Mikoll and Weiss, JJ., concur.