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.
CASE: SRC v. Construction Entity
CLIENT: Construction OCIP
DATE OF DECISION: August 20, 2020
LOIS ATTORNEY: Jonathan Mallozzi
Construction Defense at LOIS
Our Construction Defense Team is led by Partner Tashia Rasul, Esq. This dedicated team exclusively handles workers’ compensation claims arising out of construction accidents. Tashia’s expertise lies in complex coverage issues, wrap-ups, and claims arising out of catastrophic injuries. As part of her practice, Tashia frequently visits accident sites and provides on-site training to employers regarding workers’ compensation claims, as well as to develop defense strategies. Tashia is the author of the “Defending Construction Claims in New York” Handbook, available here.
Tashia regularly counsels clients on the importance of coordinating defense of workers’ compensation and general liability claims, and has a track record of favorable outcomes as a result of such coordination. In concert with Lois Law Firm’s recommended protocol for coordinating workers’ compensation and general liability defense, Tashia led a discussion of the protocol at the 2019 Annual Claims and Litigation Management (CLM) Conference to educate her peers on the importance of joint defense.
Who We Represent
We represent large project owners, OCIP and CCIPs, insurance carriers, self-insured employers, third party claim administrators, and employers before the New York State Workers’ Compensation Board. We handle cases from cradle-to-grave. We want to be by your side, moving cases aggressively to closure from the start of litigation all the way through to settlement.
We only assign one attorney and one paralegal to each case. This means that your team members always have one contact to go to for any questions. We do not have “hearing attorney” or a “negotiation attorney” or “appeal department” or anything else! All of our attorneys handle all of those roles – meaning cases are not “passed around” as they move through the litigation process. Your risk professional or adjuster always knows who is assigned – because the attorney does not change.
Within seven (7) days of referral, we provide your adjuster with a comprehensive legal action plan and budget, setting out the likely exposure, plan of action to get the case to close, analysis of any potential legal defenses, and identify the handling/trial attorney and paralegal assigned to the case. We provide you with any court- or venue- specific information, such as who the judge is, evaluation of the treating providers, best IME doctor to use, etc.
All of our attorneys are 100% dedicated to defending employers and carriers in worker’s compensation claims. While we do some associated general litigation (usually subrogation related to a workers’ compensation claims we handle) all LOIS attorneys focus their practice on workers’ compensation.
We have tried dozens of cases to conclusion this year in each of the courts we go to. We are aggressive in pursuing appeals and our practice has an above-average record on winning appeals.
We Handle the Entire State.
We appear in all New York City courts and all “upstate” hearings. We handle all workers’ compensation hearing locations in the State of New York.
City hearing points:
- Queens (Jamaica)
- Staten Island
- White Plains
- Garden City
We attend all Hearing Points statewide:
- Albany (Menands)
- Newburgh (New Windsor)
- New City
- Saranac Lake
More from the Construction Defense Team.
Join the Construction Team for upcoming training events.
Contact partner Tashia Rasul, Esq., Construction Defense Team Lead, with questions or to make referrals.