By: Belinda Be, Esq.
Always one of the most popular sessions at the conference, the discussion on recent Appellate Division decisions was led this year by Judge Benjamin Vinson, one of the three Appellate Division judges. The panel covered many cases, but the most relevant cases reviewed are below, and address a light duty job offer, a company sponsored event, and an injury which occurred on a claimant’s smoke break.
• WC-240 Suitable Light Duty : Need Evidence that the Light Duty Position Remains Continuously Available
In this case, the employee’s authorized treating physician approved a light duty position, but the employee stopped after 2 days because of alleged increased pain. Although the Board agreed with the employer/insurer that the employee was unjustified in refusing the suitable light duty job, the employer/insurer’s request to suspend income benefits was denied because the employer/insurer did not present sufficient evidence of the job’s continued availability to make a finding of continuing refusal of suitable light duty employment. The takeaway from this case is that to petition the Board to suspend income benefits due to the claimant’s unjustified refusal requires evidence (documentation and/or testimony) that the job is continuously available.
• “Company-Sponsored” Event
Here, an employee was injured at an alleged company-sponsored event that was held on property leased by another employee. The Court found the employee did not meet the burden of proving the accident arose “in the course of employment” and, therefore, the claim was not compensable because participation of the event was voluntary, work was not discussed, and the event was not found to be company-sponsored. There are three ways a claimant may prove the event was “in the course of employment”: (1) the employer expressed or implied participation is required or the activity is a part of the employee’s services; or (2) the employer derives substantial direct benefit from the activity and not just the intangible value an employer gets from improvement in the employee’s health and morale; or (3) the activity took place on work premises during a lunch or recreation break as a regular part of the job.
• Smoke Breaks
In this case, a daycare employee was injured when returning from an unscheduled smoke break taken in an adjacent convenience store parking lot, not owned or maintained by the employer. Although the administrative law judge (ALJ) found the claim compensable on the grounds that it was a “slight deviation,” the Appellate Division disagreed. The Appellate Division acknowledged “slight deviations” are compensable, but the personal deviation must be closely connected to a specific work-related task. In this situation, the Appellate Division stated the activity of smoking a cigarette was a deviation from the employee’s work and was a purely personal activity where the employer explicitly prohibited it on the premises and any work-related task had been completely set aside to pursue the activity. Unlike a restroom break or water cooler stop, smoking is not an excusable personal activity.