Claim of Durkee v. Atlantic Refining Co. ( 1967 )

Herlihy, J.

Appeal by the employer and its carrier from a decision of the Workmen’s Compensation Board which affirmed an award to the claimant. The facts as let forth in the board memorandum of decision are not disputed by the appellants. It appears that the claimant checked his employer’s service stations in the Syracuse area. The claimant had no fixed hours of employment and he was paid mileage by the employer from the time he left home until he returned thereto. On.' September 19, 1963 the claimant started for work at 7:00 A-M. and during thfe day checked service stations until about 5:00 p.m. He then went to a tavern with a friend and had a few drinks. The claimant left the tavern and went to' check a service station where he remained until about 8:45 p.m. at which time he left Syracuse and started for his home in Cortland, intending to check another service station at Tully on his way. While driving on Route 81 he beeaime sleepy and pulled his automobile off the road and went to sl>ep. He apparently slept for some time and when he awoke again started for home. He. thereafter fell asleep while driving. The accident occurred at abcut 3:55 AM. on September 20, 1963. • TheWippcllants do not contest the board’s finding that claimant was an outside worker. The appellants contend that tl’-e elaim/tnt’s deviation from his employment was such as to remove him from his employment. The majority of the board found that “the claimant was on the roate home and sustained accidental injury arising out of and in the course oí employment.” The determination was factual and within the sole province of th?/'board. (See Matter of Mansfield v. General Adjustment Bureau, 27 A D 2d 783; Matter of Naples v. Viandvende Corp., 27 A D 2d 772.) Decision affirmed, with one bill of costs to respondents.Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in a memorandum decision by Herlihy, J.