Claim of Farina v. Romano Italian Ices, Inc.

81 A.D.2d 716, 439 N.Y.S.2d 468, 1981 N.Y. App. Div. LEXIS 11269

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 1981
• Status: Published

Opinion

•— Appeal from a decision of the Workers’ Compensation Board, filed June 5, 1980. Claimant was employed by Romano Italian Ices, Inc., located in Brooklyn, New York. He lived in Fairfield, Connecticut. He drove a refrigerated truck, and sold and delivered the employer’s products along a designated route. On the morning of the accident he was driving a company van, furnished him by the employer, from his home to work. Because of the injuries sustained, he did not testify at the hearing. The board found that claimant was an outside worker; that the employer furnished transportation to and from work; and that, therefore, claimant’s accident arose out of and in the course of his employment. The employer does not dispute that claimant is an “outside worker”, but contends that the accident did not arise out of and in the course of claimant’s employment. Specifically, it contends that claimant had a fixed place of employment and there was no agreement to furnish him with transportation to and from work. The only proof on this latter issue was the testimony of the office manager. She testified, “He [claimant] did not have any — It was too difficult for him to get to work on time when he used to take mass transportation. So Mr. Grossman allowed him to take the van back and forth.” Considering the record in its entirety, we are of the view that there is substantial evidence to support the board’s determination. Decision affirmed, with costs to the Workers’ Compensation Board. Mahoney, P. J., Sweeney, Kane, Casey and Weiss, JJ., concur.