Farm Worker’s Quick Visit to See Girlfriend and Get Beer Was Unreasonable Deviation From Employment

No Compensation Benefits for Injuries Sustained in Accident

A farm worker, who sustained serious injuries in a vehicular accident when he failed to yield the right of way to oncoming traffic as he crossed a road on an employer-owned all-terrain vehicle (ATV) from his employer-provided residence to the farm itself, was appropriately denied workers’ compensation benefits, held a New York appellate court [Matter of Button v Button, 2018 N.Y. App. Div. LEXIS 7753 (3d Dept., Nov. 15, 2018)]. Evidence supported the Board’s finding that the worker was engaged in a prohibited activity at the time of the accident and, therefore, his injuries did not arise out of and in the course of the employment.

Background

On the date of injury, claimant rode the employer’s ATV to his residence, where his girlfriend was moving in that day. Claimant’s residence, which was provided by the employer, was located across the road from the farm where claimant worked. While there, claimant grabbed a beer before getting back on the ATV to return to the farm to clean the milking parlor. As claimant attempted to cross the road, he failed to yield to traffic, was struck by an oncoming vehicle and was thrown from the ATV — sustaining serious injuries.

Momentary Deviation?

The appellate court acknowledged that momentary deviations from the work routine for a customary and accepted purpose ordinarily will not bar a claim for benefits. On the other hand, activities that constitute purely personal pursuits do not fall within the scope of employment and, therefore, a claimant may not recover for injuries sustained while engaging in such pursuits. The court added that the determination of what is reasonable activity and what is unreasonable, and thus a deviation, is factual and the Board is afforded wide latitude in deciding whether the employee’s conduct is disqualifying.

Alcohol Use During Work Day Was Prohibited

Initially, claimant denied drinking alcohol on the day of the accident. Later he admitted that it “very possible” that he was drinking a beer prior to the accident. That concession was consistent with claimant’s blood alcohol level following the accident, the testimony of claimant’s girlfriend, who acknowledged that claimant “grabbed a beer from the refrigerator” prior to leaving their residence to return to the farm, the testimony of the responding EMT, who indicated that claimant’s breath smelled of alcohol at the scene, and the bottle of beer that was observed on the side of the road following the accident. The employer also testified that, in response to rumors he had heard regarding claimant drinking on the job, he spoke with claimant a few days prior to the accident and warned him that use of alcohol on the job would result in his firing.

Regardless of whether claimant was permitted to use the ATV to take a break and leave the farm, the evidence supported the Board’s finding that alcohol use was prohibited during work hours. The Board’s finding that claimant was engaged in an impermissible deviation from the employment was supported by the record.

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