D'Avilar v. N.Y. Univ. Sch. of Med.

• Decision Date: 25 March 2010
• Citation: 71 A.D.3d 1350,897 N.Y.S.2d 752
• Parties: In the Matter of the Claim of Denise D'AVILAR, Appellant, v. NEW YORK UNIVERSITY SCHOOL OF MEDICINE et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 752

71 A.D.3d 1350

In the Matter of the Claim of Denise D'AVILAR, Appellant,

v. NEW YORK UNIVERSITY SCHOOL OF MEDICINE et al., Respondents.Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

March 25, 2010.

Grey & Grey, L.L.P., Farmingdale (Kevin M. Plante of counsel), for appellant.

Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E. Wolinski of counsel), for New York University School of Medicine and another, respondents.

Before: MERCURE, J.P., LAHTINEN, MALONE JR., McCARTHY and GARRY, JJ.

McCARTHY, J.

Appeal from a decision of the Workers' Compensation Board, filed September 25, 2008, which, among other things, ruled that claimant did not sustain causally related consequential injuries.

In August 2005, claimant sustained a work-related injury to her right knee which required that she undergo reconstructive surgery and physical therapy. The incident resulted in an established workers' compensation claim. On July 28, 2006, claimant had completed physical therapy at the Hospital for Special Surgery when she slipped-injuring her left knee and back-while purchasing coffee in that facility's cafeteria. Following hearings, a Workers' Compensation Law Judge determined that these injuries were consequential to claimant's compensable injury and amended the claim. Upon review, the Workers' Compensation Board reversed, concluding that claimant's latter injuries were not compensable because they occurred while she was engaged in a personal errand. Claimant appeals.

"Whether an activity constitutes a purely personal pursuit is a factual issue for the Board, and its resolution of that issue will not be disturbed unless it is unsupported by record evidence" ( Matter of Pagano v. Anheuser Busch, 301 A.D.2d 977, 978, 754 N.Y.S.2d 700 [2003] [citation omitted] ). Moreover, although injuries sustained in the course of traveling to or from treatment for a causally related injury may warrant a workers' compensation award, "[c]ompensability is usually denied when an added factor weakens the connection between the initial and consequential injuries" ( Matter of Font v. New York City Bd. of Educ., 170 A.D.2d 928, 929, 566 N.Y.S.2d 754 [1991] ). Here, claimant testified that she had finished therapy and gone into the cafeteria to get something to drink. The coffee she received was cold so she returned it to the cashier. As the cashier was showing claimant where she could refill her cup with hot coffee, claimant...