Claim of Walsh v. Sucrest Corp.

37 A.D.2d 321, 325 N.Y.S.2d 687, 1971 N.Y. App. Div. LEXIS 3029

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1971
• Status: Published

Opinions

Simons, J.

This is an appeal by the employer and its carrier from a decision of the Workmen’s Compensation Board. Claimant’s attorney appeals from a determination of the board which denied a request for an increased attorney’s fee and reduced the fee set by the Referee.

Claimant, while attending a convention in Toronto, Canada, on behalf of his employer, fell in the bathroom of his motel and sustained a fractured skull. The sole witness to the incident testified that claimant, a sufferer from an asthmatic condition, entered the bathroom during a coughing spell and collapsed, The board, in an amended decision, made a finding of fact that claimant struck his head on the wash basin while falling, sustaining a skull fracture, ‘‘ which constituted an accidental injury arising out of and in the course of employment ”.

Under well-established rules, outside employees may remain in the course of employment even while not actively engaged in their employment duties. (Matter of Davis v. Prudential Ins. Co., 35 A D 2d 1050 ; Matter of Schreiber v. Revlon Prods., 5 A D 2d 207.) But that does not make any injury sustained by them while in the course of their employer’s business, compensable. The injury must also arise out of the employment. (Matter of Davis v. Newsweek Mag., 305 N. Y. 20.) The injury is not compensable where the accident causing it is attributable solely to the personal acts of the claimant, and not to the environment into which the employee has been necessarily placed by his employment. (Matter of Kaplan v. Zodiac Watch Co., 20 N Y 2d 537, 540.) The claimant went into the bathroom because he was suffering from an asthamtic coughing spell. His fall was idiopathic, i.e., self-originated. The environment that his employment placed him in did not contribute to the injury in any sense. The fall was preceded by “ personal acts ” of the claimant. The facts are analogous to those in cases involving injuries resulting from ‘ ‘ bath ’ ’ accidents, which have been held to be not compensable because the taking of a bath is a “ purely personal act ”. (Matter of Paduano v. New York State Workmen’s Compensation Bd., 30 A D 2d 1009, affd. 25 N Y 2d 669; Matter of Covel v. New York State Court of Claims, 30 A D 2d 736.) While there is sufficient evidence to support the board’s finding that the claimant struck the sink while falling, the presence of the sink in this case is not more significant than the presence of a bath mat in Matter of Covel v. New York State Court of Claims (supra) or the water-filled bathtub in Matter of Orpin v. D. P. Brother & Co. (15 A D 2d 282, affd. 12 N Y 2d 749). There is nothing inherently hazardous or work-related in either one. The “ added risk ” cases cited by the dissenting opinion all involve on-premises accidents. Under that circumstance the instrumentality resulting in the “ added risk” is work-related and under the control of the employer. As the Court of Appeals has said 1 ‘ the very same sort of accident could have as easily occurred at his home or at any other place. ’ ’ (Matter of Kaplan v. Zodiac Watch Co., supra, p. 540).

Section 24 of the Workmen’s Compensation Law gives the board the power of approval of attorney’s fees and such determinations shall not be disturbed so long as they are not so low or shocking as to be arbitrary, capricious, or unreasonable as a matter of law. (Matter of Baranowski v. Endicott Johnson Corp., 28 A D 2d 780; Matter of Mathiez v. Meyer, 6 A D 2d 741.) We find no reason to disturb the board’s finding in this respect.

The decision should be reversed, on the law, and claim dismissed, without costs.