Claim of Clark v. H. K. Ferguson Co.

283 A.D. 756, 128 N.Y.S.2d 71, 1954 N.Y. App. Div. LEXIS 5158

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1954
• Status: Published

Opinion

Appeal from a decision of the Workmen’s Compensation Board. Claimant was a structural iron worker employed at a fixed location. On Friday, June 3, 1949, after having finished his work for the week, he was injured in an accident while driving his own automobile on his way to his home for the weekend. His home was about sixty-eight miles from the job. Under the contract with the employer, claimant was allowed a subsistence allowance, but not a transportation allowance. The board has held that the claimant was not injured in the course of employment. There are some facts in the record under which the subsistence allowance could be construed to include transportation, but whether the allowance was for transportation and thus brought the act of traveling from the plant to his home within the scope of employment, or whether it was for maintenance, food and shelter at the site of the job, is an open question on the facts. The board having found that the accident was not in the course of the employment and the decision in its factual conclusions being binding on us on this record, the decision of the board disallowing the claim should be affirmed. Decision unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.