Defenses to New York Workers’ Compensation Claims

Workers’ Compensation benefits are analogous to no fault benefits because the employee will be entitled to benefits regardless of whether the employee was negligent in causing the injury or death. By the same token, an employer’s negligence is not considered. Comparative negligence, contributory negligence, or the act of God doctrines are not applicable in determining entitlement to workers’ compensation benefits in New York. Pierce v. Young, 252 N.Y. 520 (1929).

There are some exclusions from compensation. Keep these possible defenses handy when analyzing claims.

​Intentional Injury.

Not a defense per se, but a circumstance where the Workers’ Compensation law will not apply. Where the claimant was injured by an employer or co-employee intentionally, the injured worker can seek damages in civil court. WCL § 10(1).

In order to seek damages for intentional injury, the employee must show that there were specific, specific intent to harm the claimant – not mere gross negligence or reckless conduct by the employer.

​Intoxication.

An employee is not entitled to benefits if his injuries are caused solely by his intoxication. This defense is largely illusory, though, because of the word “solely.” If the claimant can show another contributing factor – any contributing other factor – the injuries will be found compensable. For example, if the claimant can show the intoxication along with another factor, such as fatigue caused the injury, the fact that the claimant was drunk at the time of the accident will not be a bar to compensation – the claimant will likely be successful arguing that the fatigue contributed to the accident and resultant injury and the matter will likely be found compensable. In fact, there is a statutory presumption that the intoxication was not he sole factor in any injury. WCL § 21(4).

“Intoxication” refers to both alcohol- and drug-related behavior.

Suicide.

Intentional self-injury is not compensable. However, a line of cases has developed since 1991 finding some suicides compensable. For example, a suicide may be found compensable where:

  • There was a work-related injury which caused insanity, derangement, or mental deterioration; Cf. Musa v. Nassau County Police Dep’t, 714 N.Y.S.2nd 545 (3d Dep’t 1991).
  • A depressive condition causally related to the employment (presume causal connection between work and mental illness); Friedman v. NBC Inc., 577 N.Y.S.2nd 517 (3d Dep’t 1991).
  • Work-related stress contributed to a depressive illness (which may have been pre-existent in nature and in which suicidal tendencies were a feature). Miller v. Int’l Bro. Of Elec. Workers Local 631, 654 N.Y.S.2d 460 (3d Dep’t 1997).

Athletic (Recreational) Activities.

Injuries from voluntary athletic activities are not compensable. The general rule is that activities which improved the health or morale of the employee, without any specific benefit to the employer, are not compensable, unless the employer does something (affirmatively) to seek benefit or participate in the activity. The actions of an employer can transform a purely voluntary recreational activity into an activity where compensation for injuries can be awarded. For example:

  • If the employer mandates that the employees participate in some recreational activity, then the immunity from compensation is destroyed. Kobre v. Camp Mogen Avraham, 679 N.Y.S.2d 699 (3d Dep’t 1998).
  • If the claimant is paid to participate in the activity.
  • If the employer sponsors the activity, by purchasing equipment (such as uniforms) or otherwise. Diem v. Diem & Buerger Ins. Co., 536 N.Y.S.2d 246 (3d Dep’t 1989).

What constitutes sponsoring an activity is the subject of debate. The law judges will look at this issue on a case-by-case basis.

Picnics.

Injuries occurring during company picnics will be looked at with the same analysis as injuries occurring during recreational activities. Basically, encouraging employees to attend a company picnic to promote morale is not a basis for finding compensability. Briand v. New York State Dep’t of Envir. Conserv., 587 N.Y.S.2d 458 (3d Dep’t 1992).

Purely “Personal Acts.”

Injuries from purely personal acts are not compensable. This is the “personal risk doctrine.” Simply stated, activities which are purely personal, or demonstrate a purely personal pursuit, do not fall within the scope of employment.

In looking at cases where the employer raises this defense, the WCB will consider how work-related the activity was that led to the injury.

A good example is the retail employee who is attacked at work. If the attacker was a random store customer, or someone who walked into the store to rob it, then the incident will likely be found to be compensable. However, if the employee is attacked by an estranged lover, for purely personal reasons, and the attack just happened to take place at work, then the injuries resulted from a purely personal circumstance and should not be found to be compensable.

Injuries that arise out of and in the course of employment are compensable – unless they are the result of some intervening cause. How about injuries that arise when an employee is undertaking something outside their regular duties but which still benefits the employer – like taking a class (self-education) or a lawyer who is writing a book on workers’ compensation in his spare time? Are injuries that occur during such activities compensable?

In Murphy v. Mt. Sinai Hospital, a nurse practitioner sustained multiple injuries in a traffic accident while attending a continuing education conference. Murphy v. Mt. Sinai Hospital, 829 N.Y.S. 2d 728 (App. Div. 2007). Attendance at the conference was a mandatory requirement of his position. The claimant had been encouraged to go to the conference by his supervisor. The claimant testified that his supervisor had handed him the brochure advertising the conference.

The employer denied that the injuries were a direct result of the employment – and that attendance at the conference did not directly benefit the employer.

The WCB found that “an act outside of an employee’s regular duties which is undertaken in good faith to advance the employer’s interests is generally within the course of employment.” Therefore, any injuries arising from the act (in this case, a motor vehicle accident) were compensable.

In so ruling, the WCB looked at the factual circumstances surrounding the educational conference. The WCB was impressed by the following: (1) The employer paid remuneration for two “conference days”; (2) the employer encouraged the employee to attend the conference; and (3) attendance was a mandatory requirement for the position.

Lunchtime injuries.

Lunch is generally considered to be a personal act (see above) and so lunch-time injuries are generally not compensable. This is especially true where the employee eats his lunch off-site.

Greg Lois is the managing partner of LOIS LLC, a 21-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com