Claim of Holcomb v. Daily News

Appeal from decisions of the Workmen’s Compensation Board, filed April 29, 1976, November 24, 1976 and June 29, 1977. This is a claim for death benefits. On September 19, 1974, at about 12:15 a.m., while decedent was walking to work, he hailed and was picked up by a coemployee who was driving a company truck. In some unexplained manner, decedent fell from the truck and was killed. The board determined that decedent’s accidental death arose out of and in the course of his employment. This appeal ensued. There is proof in the record that drivers regularly picked up fellow employees on their way to and from work and that supervisors and dispatchers were aware of this practice. There was conflicting testimony on this issue and the existence of a prohibitory rule pertaining to the transporting of coemployees. These were issues for the board to determine. There is, in our view, substantial evidence to sustain the board’s determination that it was common practice to pick up employees; that such was known by the employer; and that the employer was, in effect, providing transportation. Consequently, the accident was within the course of decedent’s employment, and the decision must be affirmed (1 Larson, Workmen’s Compensation Law, § 17.30). Decisions affirmed, with costs to the Workmen’s Compensation Board against the employer and its insurance carrier. Koreman, P. J., Greenblott, Sweeney, Mikoll and Herlihy, JJ., concur.