LOIS Senior Associate Adam Lowenstein successfully argued that a motor vehicle accident was not compensable under the New York Workers’ Compensation Law. The Claimant alleged that an accident took place while she was taking an Uber to work in light the accident occurring at the entrance to the employer’s premises. Alleged injuries included the neck, back, right shoulder, left shoulder, right hand, right wrist, left hip, left knee, consequential depressive disorder, anxiety disorder, cognitive disorder, and post-traumatic stress disorder. Lowenstein’s investigation revealed that that the Uber was not paid for by the employer, nor was directed to be used as transportation. It was confirmed that the Claimant worked at a fixed location, did not bring any work home with her, and was not a portal-to-portal employee. Moreover, the Uber was not yet on the employer’s premises, nor was the other vehicle involved related to the employer. Lowenstein then disclosed video footage of the alleged incident in question and admitted same into evidence.
At trial, Lowenstein’s cross-examination centered on what was confirmed through his investigation: that the Claimant had not clocked in, worked at a fixed location, and did not take work home with her. She confirmed that the Uber was not directed by the employer and was the choice of and paid for by the Claimant. It was also confirmed that the motor vehicle accident took place outside the gate on a road that has public access in order to reach two other businesses. Lowenstein then used the testimony of the employer-witness to verify the Claimant’s work status at the time of the accident. Given the development of the record, Lowenstein argued that the Claimant’s commute was not covered as compensable, that the accident did not arise out of and was not in the course of employment, and the accident occurred outside the scope of work activity. Following the Law Judge’s review of the record and in-camera review of the video footage, a Reserved Decision was issued, disallowing the claim based on the testimony elicited regarding the nature of the accident. The Decision also noted that the video established that the accident occurred outside of the scope and control of the employer in concluding that the claim for Workers’ Compensation benefits is disallowed.
