Sharipova v. BNV Home Care Agency, Inc.

• Decision Date: 04 February 2021
• Docket Number: 530614
• Parties: In the Matter of the Claim of Munira SHARIPOVA, Appellant, v. BNV HOME CARE AGENCY, INC., et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 1071
142 N.Y.S.3d 112

In the Matter of the Claim of Munira SHARIPOVA, Appellant,
v.
BNV HOME CARE AGENCY, INC., et al., Respondents.

Workers' Compensation Board, Respondent.

530614

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

Calendar Date: January 5, 2021
Decided and Entered: February 4, 2021

142 N.Y.S.3d 113

Elefterakis Elefterakis & Panek, PC, New York City (Oliver R. Tobias of counsel), for appellant.

Foley, Smit, O'Boyle & Weisman, New York City (Theresa E. Wolinski of counsel), for BNV Home Care Agency, Inc. and another, respondents.

Before: Garry, P.J., Clark, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from a decision of the Workers' Compensation Board, filed May 29, 2019, which ruled that claimant's injury did not arise out of and in the course of her employment and denied her claim for workers' compensation benefits.

Claimant, a live-in home health attendant who provided comprehensive care to one client 24 hours a day seven days per week, filed a claim for workers' compensation benefits alleging that she suffered injuries to her face, head, teeth, both shoulders, both knees, back, left hand and left wrist as a result of a work-related accident on October 29, 2018. On the date of the incident, claimant escorted her client on a customary walk, via the use of a wheelchair, and the two elected to stop at a doctor's office along their route. According to claimant, the office was that of her own physician and she stopped in to retrieve certain medical paperwork required by the employer and to confirm whether the physician accepted her client's medical insurance so that claimant could later schedule an appointment for the client. Upon exiting the office, claimant slipped and fell on the office's wheelchair ramp, resulting in significant injury to both her and her client. A Workers' Compensation Law Judge concluded that claimant's injuries arose out of and in the course of her employment and that any momentary deviation from her routinely scheduled work contained elements of both personal and business-related matters. The employer and its workers' compensation carrier appealed, arguing that claimant's purpose in stopping at the doctor's office was purely personal and in violation of the employer's alleged protocol regarding personal activities during work hours, thereby placing claimant outside of the scope of employment, and that her self-serving testimony of a dual purpose was not to be believed. The Workers' Compensation Board agreed. Claimant appeals.

"To be compensable under the Workers' Compensation Law, an accidental injury must arise both out of and in the course of a claimant's employment" ( Matter...