Accidents arising out of and in the course of employmentJanuary 01, 2014
Accidents Arising Out Of And In The Course Of Employment
By Alex C. Dell, Esq.
In order to constitute a compensable accident under the New York State Workers' Compensation Law (WCL), the accident must arise out of and in the course of the claimant's employment. Whether an accident arose out of and in the course of one's employment is a question of fact for the Workers' Compensation Board (Board) to decide. Consequently, there is an abundance of case law providing guidance to the practitioner as to whether certain facts and circumstances resulting in an injury may qualify as an accidental injury under the WCL.
In order to analyze whether an accident arose out of and in the course of employment, two conditions must be met. First, the accident occurred "in the course of employment," meaning that the accident occurs during a period of time in which the claimant is working or performing the activity he or she was hired to perform. Second, the accident "arose out of" the employment, meaning that the accident occurred as a result of certain employment activity the claimant was hired to perform. The practitioner needs to carefully review decades of case law involving the potential compensability of accidental injuries that result from myriad fact patterns including assaults, horseplay, lunch hour claims, field worker and special errand claims, off-premises claims, travel claims or work-rule violation claims, to name several areas that have generated an abundance of case law.
Specific Statutory Exclusions
There are, however, some specific statutory restrictions with respect to liability for compensation. There is no liability for compensation in the following instances: (1) when the injury has been solely occasioned by the injured employee's intoxication from alcohol or a controlled substance while on duty; (2) where the injured employee willfully intended to bring about the injury or death of himself or another; (3) where the injury was sustained during or caused by voluntary participation in an off-duty athletic activity not constituting part of the employee's work-related duties, unless the employer: (a) requires the employee to participate in such activity; (b) compensates the employee for participating in such activity; or (c) otherwise sponsors the activity.
Moreover, the terms "injury" and "personal injury" mean only accidental injuries arising out of an in the course of employment and such disease or infection as many naturally and unavoidably result therefrom. The terms "injury" and "personal injury" do not include an injury which is solely mental and is based on work-related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion or termination taken in good faith by the employer.
Other Non-Compensable Accidents
Furthermore, activities that are purely personal pursuits are not within the scope of employment and thus are not compensable under the WCL, the test being whether the activities are both reasonable and sufficiently work related under the circumstances.
Similarly, where an injury results solely from a personal act for the claimant's benefit and is unrelated to any service for the employer, compensation is generally denied. In addition, generally, absent some physical connection to the premises of an employer in time and space, an accident that befalls an employee on his or her way to or from work has not arisen "in the course of employment."
With regard to altercations between employees after the workday ends, generally, a claim regarding to the fulfillment of threats uttered during working hours, in the course of a work-connected argument, is compensable under the continued altercation rule if it was commenced within the time and space limits of employment.
The Role Of The WCL § 21 Presumptions
If it is established that if the claimant's accident occurred in the course of his or her employment, the claimant may then enjoy the benefit of certain statutory presumption, which may enable the claimant to establish a compensable claim — even where evidence establishing that the accident actually arose out of the employment is lacking. Nevertheless, the presumptions set forth in WCL § 21 are not a substitute for the facts and will not override contrary facts.
In the absence of substantial evidence to the contrary, the WCL § 21 presumptions state, in relevant part, that: (1) the claim comes within the provision of the chapter; (2) the injury was not occasioned by the willful intention of the injured employee to bring about the injury or death of himself or another; and (3) the injury did not result solely from the intoxication of the injured employee while on duty. To rebut one of these presumptions, an employer must present substantial evidence to the contrary, which is credited by the Board.
Even where an individual's activities have no relationship to his or her employment activity, there may be a compensable accident. In order to analyze the compensability of such claims, one must analyze the facts and circumstances surrounding the accident, including whether the employer condoned the behavior that led to the accident. Where it is demonstrated that the activity leading into the accident did not arise out of the claimant's employment activity, but the employer condoned such activity, then the resulting accident may be compensable as being deemed to have arisen out of and in the course of one's employment.
Notice Of Controversy (Form C-7)
When there is a question as to whether the claimant's injury or injuries arose out of and in the course of employment, the employer and/or its insurer generally files a Notice of Controversy (Form C-7) with the Board.
If the employer and/or insurance carrier decides to controvert or dispute the right to compensation, a Notice of Controversy (C-7 form) shall be filed with the chair within 25 days from the date of the mailing of a notice that the case has been indexed. Generally, notice that the case has been indexed is sent by the Board via form EC-84, Notice of Indexing, which includes the date on which the notice of indexing was sent to the employer and its insurance carrier.
Where an employer and its insurer decide to controvert a workers' compensation claim by asserting that there was no accident and/or that the injury did not arise out of and in the course of employment, the failure to file a Notice of Controversy (C-7 form) within the prescribed time limit can be fatal. Specifically, said failure may preclude the employer from properly defending a claim.
Defense Waivers Resulting From The Failure To Timely File The C-7 Form
Moreover, WCL § 25(2)(b) provides that the failure to file the notice of controversy within the prescribed 25-day time limit "shall bar the employer and its insurance carrier from pleading that the injured person was not at the time of the accident an employee of the employer, or that the employee did not sustain an accidental injury, or that the injury did not arise out of and in the course of employment."
Excuse To Avoid Waiver Of C-7 Defenses
The Board shall, however, in the interest of justice and upon the showing of good cause, permit the late filing or amendment of a notice of controversy to raise an issue not theretofore raised because of mistake, inadvertence, omission, irregularity, defect or surprise, or based on newly discovered evidence. However, the employer and its insurance carrier have the burden of proof to show good cause to permit the late filing of a notice of controversy.
As a practical matter, and in order to potentially eliminate any defenses, the claimant's representative will review the Board's electronic case folder to determine the date on which the Notice of Indexing (Form EC-84) was sent to the employer and its insurer together with the date on which the notice of controversy was actually filed or received by the Board.
In evaluating the compensability of a workers' compensation claim, one must always be mindful of the specific statutory exclusions contained in WCL §§ 2(7) and 10(1), and must navigate voluminous case law for guidance regarding whether a specific set of facts and circumstances qualify as "accidental injuries arising out of and in the course of employment."
- Whether an accident arose out of and in the course of one's employment is a question of fact for the Workers' Compensation Board to decide.
- The presumptions set forth in WCL § 21 are not a substitute for the facts and will not override contrary facts.
- WCL § 2(7) provides that terms "injury" and "personal injury" shall not include an injury which is solely mental and is based on work-related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion or termination taken in good faith by the employer.
- WCL § 10(1) provides, in part, that there shall be no liability for compensation when the injury has been solely occasioned from alcohol or a controlled substance of the injured employee while on duty or by the willful intention of the injured employee to bring about the injury or death of himself or another.