Opinion
October 24, 1967
Appeal by the employer and its carrier from a decision and award of death benefits by the Workmen's Compensation Board on the grounds that decedent's death did not arise out of and in the course of employment. Decedent, a vice-president in charge of supervising the appellant employer's 14 retail stores, was killed at 8:15 P.M. on December 31, 1965 in a one-car unwitnessed automobile accident while proceeding on a direct route from the employer's main plant to his home. Appellants seek to attack the board's finding that decedent was an outside employee. As such, of course, he would be considered to be in employment from the time he left home in the morning until he returned at night (e.g., Matter of Bennett v. Marine Works, 273 N.Y. 429; Matter of Devlin v. Petry Co., 24 A.D.2d 804). The question of whether an employee is an "outside" or "inside" worker is factual and thus if the board's resolution of the issue is supported by substantial evidence, the board must be sustained ( Matter of Bennett v. Marine Works, supra). The instant record reveals abundant evidence to support the board's finding that decedent was an outside employee. The board was not, as appellants urge, required as a matter of law to find that decedent was an inside employee because he was not for reasons of personal convenience driving the company car provided to him at the time of the accident (see, 1 Larson, Workmen's Compensation Law, § 17.10) or that he reverted to the status of an inside worker because he returned to his office before proceeding home since unquestionably his duties and hours of employment were not so limited ( Matter of Salvato v. Metropolitan Life Ins. Co., 22 A.D.2d 981; see, cf., Matter of Shafran v. Board of Educ., 25 A.D.2d 336, 338). Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.