Claim of Cast v. City of Gloversville Water Department

Harvey, J.,

dissents and votes to reverse in a memorandum. Harvey, J. (dissenting). I respectfully dissent.

In my view, the finding of the Workers’ Compensation Board that decedent’s death did not arise out of or in the course of his employment is not supported by the record. It is hornbook law that the Workers’ Compensation Law "must be liberally construed in favor of the employee or other claimant, to effectuate the humanitarian, beneficent, and social objects and purposes of the act” (65 NY Jur, Workers’ Compensation, §55, at 398-400). The evidence was less than conclusive in most respects and largely came from the testimony of a supervisor of the City of Gloversville Water Department, which is the self-insured employer in the case. It would appear that the decision of the Board was predicated upon a finding that decedent was engaged in woodcutting for his personal use when he was stricken. The accuracy of that determination fails, in my view, to conform to all of the evidence. Unfortunately the one person who could accurately state the complete duties of a caretaker on this watershed and the relationship between the caretaker and the employer would have been decedent himself. My conclusion from all the evidence is that the caretaker lived on the premises to benefit the owner of the land. The specific projects which he was required to perform were discussed between him and his supervisor. However, looking after the premises to observe any condition of the property which would have a detrimental effect upon the use of the property and the protection of the property against intruders was not directed in any formal manner. To facilitate the caretaker’s duties in those respects the employer provided him with a house, paid for its utilities and made all necessary repairs. Consequently, in my view, the caretaker was on duty whenever he was on the premises in or out of the house.

There was evidence, uncontradicted, that decedent had installed certain woodburning stoves in the house which was known to the employer. There was good evidence supporting a finding that the firewood being cut at the time decedent was stricken was to be used to heat the house. Consequently, it is clear that decedent was in fact providing fuel to assist the employer’s responsibility to heat the house. This was a benefit to the employer and was performed in the course of decedent’s employment.

The issue most discussed by the parties was the assertion by decedent’s supervisor that no one was to cut firewood without the express authorization of the employer. Assuming the existence of such a rule and assuming that decedent did not have specific authority to cut the wood, the claim still should not be denied. The Court of Appeals in Matter of Merchant v Pinkerton's Inc. (50 NY2d 492) held that willful disobedience of the rules of the workplace has no bearing upon whether an injury is compensable. In that case, claimant was expressly forbidden to carry a firearm unless instructed to do so. Claimant violated that rule and was killed when his gun went off accidentally. In Matter of Richardson v Fiedler Roofing (67 NY2d 246) the Court of Appeals affirmed an award of death benefits to survivors of a roofer who fell while illegally removing a copper downspout for his own personal gain. Applying the reasoning of the court in those two cases, the unauthorized cutting of firewood in the instant case should not defeat the claim.

Accordingly, I would reverse the Board’s decision and award benefits to claimant.