Opinion · Appellate Division of the Supreme Court of the State of New York
Claim of Fisher v. Otis Elevator Co.
Claim of Fisher v. Otis Elevator Co., 28 A.D.2d 598 (Appellate Division of the Supreme Court of the State of New York 1967)
- Type
- Opinion
- Court
- Appellate Division of the Supreme Court of the State of New York
- Jurisdiction
- New York
- Date
- 1967-05-17
- Topic
- general
— • Gabrielli, J. *599Gibson, P. J., Reynolds, Aulisi and Gabrielli, JJ., concur in a memorandum by Gabrielli, J.; Herlihy, J., dissents and votes to reverse and dismiss in the following memorandum. I agree with the statement of facts in the majority opinion, but I disagree with the conclusion that there is substantial evidence to sustain the board’s finding that the per diem allowance “ was at least in part in the nature of a travel allowance ”, In regard to the statement of facts, it should be noted that the employee was returning to the work area after a day of personal recreational activities. The argument is made that since the record establishes that the employer knew that some of the employees would occasionally return home in their free time, the employer must have anticipated that the per diem allowance would finance such travel. I would note that an employer must anticipate that an employee receiving a subsistence allowance might travel anywhere in the world on his free time, dependent only upon the speed of transportation available to the employee, and that the present majority decision would apparently provide compensation coverage for such travel.
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MATTER OF FISHER v. OTIS ELEVATOR COMPANY,28 A.D.2d 598[3d Dept 1967]
In the Matter of the Claim of ELLA M. FISHER, Respondent, v. OTIS ELEVATOR
COMPANY et al., Appellants.
WORKMEN'S COMPENSATION BOARD, Respondent.
Appellate Division of the Supreme Court of New York, Third Department.
GABRIELLI, J.
Appeal from a decision awarding death benefits. Appellants contend that decedent's fatal automobile accident was not employment-connected. Decedent was regularly employed in Syracuse, New York as an elevator constructor's helper. In March of 1964 the employer assigned him to a job located in Johnson City, New York, some 78 miles from Syracuse. It was anticipated that the assignment would last four to five months. In addition to the regular weekly wages, a union agreement provided that on construction jobs outside the Syracuse zone, employees would be paid mileage for the original trip to the job site and the final trip home, plus an additional allowance of $7.50 per day or $52.50 per week. The manner in which the employee spent the per diem allowance was not restricted by the employer. Although claimant was paid a per diem allowance for a seven-day week, he and the other employees worked but five days per week. At the end of a work week, he returned to hisPage 599home in Syracuse on Friday, May 28, and was not expected to return until Monday. He spent the week end visiting his children and upon his return to the job site he was killed in an automobile accident. The record clearly establishes that there were no restrictions on the use of the $7.50 allowance and that the employer knew, expected and impliedly acquiesced in the practice of periodic trips home made by such employees. There was substantial evidence to sustain the board's finding that this payment was at least in part in the nature of a travel allowance. Our attention has been called toMatter of Clarkv.FergusonCo.(283 App. Div. 756) wherein we sustained the board's disallowance of the claim upon the finding that under the contract with the employer, the claimant was given a subsistence allowance, but not a transportation allowance. This court pointed out that although there were some facts in the record under which the allowance could be construed to include transportation the question as to "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." Here, however, the board has resolved that fact question in favor of the claimant by finding "that the allowance paid to decedent was in the form of a travel allowance, bringing the act of traveling to and from the job site within the employment." In addition, an inference can be reasonably drawn that at the time of the making of the union contract, the employer knew that employees temporarily assigned outside the Syracuse area, would return home. The record also supports the conclusion that the employer acquiesced in the practice and must have anticipated that the per diem allowance would finance such travel and, therefore, this case falls within the ambit of the authorities which hold that where travel is financed at least indirectly by the employer, the accident arises out of and in the course of the employment. (See, e.g.,Matter of Frickv.RouseConstr. Corp.,19 A.D.2d 685;Matter of Macalusov.Alexander, Shumway Utz Co.,11 A.D.2d 838, mot. for lv. to app. den.8 N.Y.2d 708.) Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Reynolds, Aulisi and Gabrielli, JJ., concur in a memorandum by Gabrielli, J.; Herlihy, J., dissents and votes to reverse and dismiss in the following memorandum. I agree with the statement of facts in the majority opinion, but I disagree with the conclusion that there is substantial evidence to sustain the board's finding that the per diem allowance "was at least in part in the nature of a travel allowance". In regard to the statement of facts, it should be noted that the employee was returning to the work area after a day of personal recreational activities. The argument is made that since the record establishes that the employer knew that some of the employees would occasionally return home in their free time, the employer must have anticipated that the per diem allowance would finance such travel. I would note that an employer must anticipate that an employee receiving a subsistence allowance might travel anywhere in the world on his free time, dependent only upon the speed of transportation available to the employee, and that the present majority decision would apparently provide compensation coverage for such travel. In the case ofMatter of Frickv.Rouse Constr. Corp.(19 A.D.2d 685) the board had before it earnings statements which denominated the additional pay as "travel" and the employer's income tax papers which denominated the additional payments as "Travel — Subsistence". Also, that employer kept bookkeeping records in which the additional payments were denominated as "Travel". Accordingly, we found that there was substantial evidence to support the board's fact finding of travel allowance as opposed to the employer's contention that the additional payments were subsistence allowances. In the case ofMatter of Macalusov.Alexander, Shumway Utz Co.Page 600(11 A.D.2d 838) there was direct evidence that the claimant received a travel allowance of one dollar per day and we affirmed the board's rejection of the employer's argument that the one dollar per day was a mere gratuity. Although bothFrickandMacalusoare relied upon by the majority herein, it is evident that in both of those cases there was probative evidence which indicated that the additional payments were in fact travel payments or partial travel payments. The fact that the employer foresaw or should have foreseen that the employees would travel home at times is not sufficient to support a finding of travel allowance when there is nothing else in the record to prove that the payments were incidentally or otherwise intended for such purpose. (Cf.Matter of Frickv.Rouse Constr. Corp., supra.) Travel allowance was explicit for the trip on the first day to commence the job and again on the last day upon completion of the job and on no other occasion and there is in this record no basis for the inference of implied travel allowance. In accordance with my foregoing opinion, I find that the decision of the board should be reversed and the claim dismissed.