Safety and OSHA News

Struck while on work-provided ATV, but he might’ve had a beer: Workers’ comp?

A farm worker was riding his employer’s all-terrain vehicle (ATV) after grabbing a beer at his residence and returning to the work site. He was struck by another vehicle and seriously injured. Did a court award him workers’ comp benefits? 

Gavin Button was a farm worker in charge of the employer’s dairy cows. After milking the cows one day, Button road his employer’s ATV to his residence where his girlfriend was moving in that day. Button’s residence was provided by his employer and was across the road from the farm.

While there, Button grabbed a beer before getting back on the ATV to return to the farm to clean the milking parlor. As he was crossing the road, he didn’t yield to oncoming traffic and was struck by an oncoming vehicle. Button was seriously injured and applied for workers’ comp benefits which were denied by his employer.

A workers’ compensation law judge also denied his claim, finding Button was engaged in a prohibited activity when he was struck by the other vehicle, therefore his injuries didn’t arise out of and in the course of his employment. The Workers’ Compensation Board affirmed the judge’s ruling. Button appealed to a state court.

In New York, “momentary deviations from the work routine for a customary and accepted purpose will not bar a claim for benefits,” but “activities that constitute purely personal pursuits do not fall within the scope of employment.”

It’s up to the Workers’ Compensation Board to determine what is a reasonable momentary deviation.

The court noted:

  • Although Button initially denied drinking alcohol on the day of the crash, he subsequently acknowledged it was “very possible” he was drinking a beer before he was struck.
  • Button’s testimony that it was very possible he had been drinking was consistent with his blood alcohol level, his girlfriend’s testimony, and the testimony of the EMS who responded and noted the smell of alcohol on Button’s breath. There was also a beer bottle found at the scene.
  • His employer said he had talked with Button about rumors that he’d been drinking on the job and said it was prohibited.

Since the record showed substantial evidence to support the Board’s finding that Button was engaged in a prohibited activity, the court ruled his injuries didn’t arise out of and in the course of his employment and weren’t compensable.

(Button v. Button, New York Appellate Division, Third Department, No. 525989, 11/15/18)

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