Two cases decided in the last month came to differing conclusions about whether assaults which occurred at work were ‘compensable.’
A New York Workers’ Compensation claimant is availed five (5) presumptions. New York Work. Comp. Law § 21.
The first presumption is that an accidents which occurs in the course of employment is presumed to arise out of the employment. This is a temporal/substantive link: if the injury occurs at work and during the work day, it is presumed the injury ‘arose out of and in the course of employment.’
If the activity the claimant was undertaking at the time of the accident was ‘purely personal’ it would not be within the scope of the employment and the presumption would be rebutted.
Injuries from purely personal acts are not compensable. This is the “personal risk doctrine.” Activities which demonstrate a purely personal pursuit, do not fall within the scope of employment. An assault occurring at work is accordingly presumed to have also arisen out of the employment, a presumption that can be rebutted with substantial evidence that the assault was motivated by purely personal animosity. See Workers’ Compensation Law § 21; Matter of Rosen v. First Manhattan Bank, 84 N.Y.2d 856, 857 (1994); Matter of Turner v. F.J.C. Sec. Servs., 760 N.Y.S.2d 602 (2003).
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 will likely not be found to be compensable.
Two recent cases applied this rule.
In Wadsworth v. K-Mart Corp., — N.Y.S.2d —, 2010 WL 1375231 (App. Div. 3rd Dep’t, Decided April 8, 2010), the Workers’ Compensation Board found that ’emotional injuries’ sustained by a claimant whose car was stolen while she was at work were compensable. Bizarrely, a week after the car was stolen, the claimant saw the car idling in the parking lot at work. When the claimant approached the vehicle, she became involved in a scuffle with the driver. At the same time, a co-worker emerged from the place of work, jumped in the car, and the stolen car took off. The Board ruled against the employer, citing the fact that a co-worker was apparently involved in the theft of the car, and found the matter compensable.
The employer appealed, arguing that the incident did not arise out of the course of the employment and was purely a personal matter.
The Appellate Court agreed with the employer, and overturned the award. The Appellate Court ruled that while there was a question of fact for the Board to decide, and an award of benefits is proper if “there is any nexus, however slender, between the motivation for the assault and the employment” ( Matter of Baker v. Hudson Val. Nursing Home, 649 N.Y.S.2d 105 (1996), lv. denied 659 N.Y.S.2d 854 (1997); accord Matter of Perez v. Victory Motor Inn, 767 N.Y.S.2d 673 (2003), the decision must be based on “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229, (1938); accord Matter of Russo v. HRT, Inc. of Orange County, 667 N.Y.S.2d 854 (1998), lv. denied 676 N.Y.S.2d 128 (1998).
The Appellate Court reasoned that “the statutory presumption was rebutted by substantial evidence presented that the motivation for the assault was purely personal animosity between claimant and the individual she discovered driving her stolen vehicle. . . Claimant’s assailant was not a coworker or otherwise connected to her employment and there is no work-related explanation given for the altercation.” The decision of the WCB was overturned as ‘arbitrary.’
In a second case, decided May 6, 2010, the Appellate Division reviewed an award of compensation benefits filed by Deborah Wilson. Deborah Wilson v. General Mills, — N.Y.S.2d —, 2010 WL 1791132 (App. Div. 3rd Dep’t, Decided May 6, 2010). In Wilson, the Claimant, a general mechanic, filed a claim for workers’ compensation benefits after a coworker struck her in the face with what was variously described as an air regulator or valve. Claimant and her assailant had a long history of difficulties. While claimant described repeated harassment due to race and gender, she also testified that the assailant had “defamed” her abilities and work as a mechanic by stating that she was a “bad mechanic,” and influencing other coworkers to believe this was true. Even the affidavit that claimant filed with the Equal Employment Opportunity Commission in support of her discrimination complaint, upon which the employer and its carrier relied upon, suggested that at least some of the assailant’s offensive comments and conduct stemmed from a promotion and pay raise that claimant received in 2005.
In Wilson, the Appellate Court found a ‘nexus between the employment and the injury’ as so found the assault injury compensable.