LOIS Attorney Wins “Special Hazard” Case

Construction Defense Team Associate Jonathan Mallozzi successfully argued to the Board Panel that the claimant was outside the scope of her employment and not subject to any special hazard when her accident occurred, and obtained a disallowance of the claim.

This claim involved an alleged work-related accident that took place on October 2, 2019. The claimant alleged that she was struck by a New York Sanitation van approximately 20 feet from her work location. The vehicle was backing down the block and allegedly struck the claimant on her right side, causing an injury to her right upper arm. The claimant conceded on her C-3 that the accident occurred on her lunch break. At trial, and after a through cross-examination of the claimant and the testimony of an employer witness, the Law Judge agreed that the claimant was on a public street during her lunch break and not subject to any special hazard that was not shared by the general public. As the claimant was on a public street and on her lunch break, the employer was found not liable and the claim was disallowed in its entirety.

The Claimant appealed the decision to the Board Panel, citing to case law that stated that an employee remains under the employer’s control during coffee breaks and short distances from the work location. Further, the claimant argued that she sometimes answered phone calls on her break, and that the employer remained in control of the claimant. Through development of the facts at trial and in conjunction with case law, Jonathan argued to the Board Panel that as a general rule, accidents that occurred on a public street are not considered to have arisen in the course of employment. The case law is clear that absent a “special hazard” that is not shared by the general public, the claim cannot be found to be compensable. Further, Jonathan argued that accidents that occur on a claimant’s lunch break were not compensable unless the claimant was performing some act at the request of their employer on that break.

The Board Panel adopted this reasoning in its decision, stating that the claimant chose to leave the building to purchase lunch. It stated that the claimant had not presented sufficient evidence of a special hazard that was not shared by the general public. The Board Panel further noted that the claimant was struck by a vehicle on a public street and was not on any special errand for her employer. Accordingly, Board Panel found that the claimant did not suffer an accident arising out of and in the course of her employment, and affirmed the Law Judge’s disallowance of the claim. The Board affirmed the Law Judge’s March 23, 2020 decision, disallowing the claim in its entirety.