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WINNING RESULTS: Successful Defense in Off-Premises Going-and-Coming-Case

The claimant, a “Stockman” employed by a supermarket, was injured when he was struck by a motor vehicle while crossing a street. As a result, the claimant alleged multiple serious injuries including a skull fracture. Our client advised that the claimant had left for lunch and never returned. We recommended denying the case on the basis that the accident did not arise out of the course the claimant’s employment, as accidents occurring on lunch breaks are generally not compensable. In other words, the “coming and going” rule would apply.

The claimant testified at the hearing regarding his accident. He testified that he was on his way back to work after his lunch break, and that he was “practically in front of” the supermarket when he was hit by a car. Accordingly, there was a risk that the WCLJ would find that the claimant was in the “grey area” where proximity to the employer can give rise to compensability under some circumstances.

However, the MV-104 (motor vehicle accident report) indicated that the accident occurred about half a block from the insured’s location. Accordingly, we cross-examined the claimant with the aid of a map, and clarified that the location of the accident was about 450 feet from the supermarket, in a public intersection. We further confirmed that the claimant was clocked out and not working at the time of the accident, and that he could go anywhere he wanted to for lunch. Ultimately, the WCLJ disallowed the claim upon a motion for summary judgement, as we successfully argued that the claimant had not met the burden of showing that his accident arose in the course and scope of his employment.

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Learn More About New York Workers’ Compensation Defense at LOIS

We represent 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.

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