Coming and Going Rule: A Review of the New York Case Law

Injuries Commuting to Work Generally Not Compensable.

Under the New York Workers’ Compensation Law there is a presumption that if an accident occurs in the course of employment it is presumed to arise out the employment. The “coming and going rule” under the Workers’ Compensation Law states that employees are not deemed to be in the course of their employment when they are traveling to-and from-work. Additionally, the risks inherent in traveling to and from work relate to the employment only in the most marginal sense. Matter of Neacosia v. New York Power Authority, 85 NY2d 471 (N.Y. App. Div. 3d Dep’t 1995)Matter of Davis v. Labor Ready, 69 A.D.3d 1214, 1215 (N.Y. App. Div. 3d Dep’t 2010). Thus, an injury that occurs during such commuting activities is typically not compensable.  Exceptions to this general rule are recognized where there exists some reasonable nexus between the risk to which a claimant was exposed and the employment.

In that regard, only if an injury flows as a natural consequence of the employee’s duties can it be said to arise out of the employment. Similarly, for an injury to occur in the course of employment, “[i]t must have been received while the employee was doing the work for which he was employed.” Lemon v. New York City Transit Authority72 N.Y.2d 324, 326-327 (N.Y. 1988)Malacarne v. Yonkers Parking Authority, 41 N.Y.2d 189, 190 (N.Y. 1976) “A purely fortuitous coincidence of time and place is not enough. There must be a causal relationship or nexus between the accident and the employment.” Id.

The Case Law.

In 1978 the Court of Appeals issued a ruling on the issue of whether a matter is compensable if a claimant incurs an injury traveling to and/ or from work.  In the Matter of Holcomb v. Daily News the Court of Appeals upheld the award of death benefits where the claimant/ employee was on his way to work, hailed the driver of one of his employer’s passing delivery trucks who picked the claimant up and was fatally injured during the ride to work. Matter of Holcomb v. Daily News, 45 N.Y.2d 602 (1978).  On Appeal,  the Court of Appeals held that “[a]n employer who assumes by custom or contract the responsibility to transport [its] employees must likewise bear the responsibility for the risks encountered in connection with the transportation” Id. at 606. Specifically, the Court of Appeals found that there was a sufficient basis for the award of workers’ compensation death benefits, upholding the finding that transporting employees to and from work was a common practice, that the employer essentially acquiesced in this course of conduct, and that such a course of conduct provided a benefit to the employer. Id. Therefore, where it is common practice that the employer assumes the responsibility to transport its employees to and from the office or furnishes such transportation, if an employee is injured during that transportation to and from work, the Workers’ Compensation Board will likely find the claim compensable.

Nearly a decade later, in 1988, the Court of Appeals revisited the “coming and going rule” and distinguished the Matter of Holcomb v. Daily News decision in the case of Lemon v. New York City Transit Authority. In Lemon v. New York City Transit Authority the court upheld the decision that claimant did not sustain a compensable injury when the claimant, an employee of the New York City Transit Authority, fell while climbing the stairs on her way home at the Utica Avenue station, 1 hour and 20 minutes after signing out of work at the Woodlawn Avenue terminal.  Lemon v. New York City Transit Authority, 72 N.Y.2d 324 (N.Y. 1988). The Court of Appeals found that given the remoteness in terms of time and space from the Woodlawn terminal, there is no reasonable connection between claimant’s injury and her employment. Id. Moreover, the Court of Appeals noted that the assertion that claimant’s accident is compensable because of the free transportation pass issued to her by the Transit Authority effectively made the employee’s journey to and from work a part of claimant’s employment untenable, since there was no evidence in the record to indicate that the Transit Authority assumed an obligation, either by contract or custom, to facilitate her travel to and from work, nor is there any finding that the Transit Authority derived any benefit because claimant used her pass to commute to and from work. Id.

In the Lemon v. New York City Transit Authority decision the Court of Appeals distinguished the facts of the case from their previous decision in Matter of Holcomb v. Daily News. Specifically, the Court of Appeals in Lemon v. New York City Transit Authority   noted that the facts of both Matter of Holcomb v. Daily and Lemon v. New York City Transit Authority  bear little resemblance to each other.  Lemon v. New York City Transit Authority, 72 N.Y.2d 324 (N.Y. 1988).  The Court particularly found that in Matter of Holcomb, the record indicated that the employer, Daily News, had an established custom of permitting its truck drivers to regularly provide other News employees rides to work on its trucks. Additionally, the company’s supervisors and dispatchers were aware of the practice. Matter of Holcomb v. Daily News, 45 N.Y.2d 602 (1978). Furthermore, the Matter of Holcomb record also contained findings of fact indicating that the employer actually derived a benefit from this practice. Lemon v. New York City Transit Authority, 72 N.Y.2d 324 (N.Y. 1988).  In that regard, the Court distinguished the cases when it found that although the claimant in Lemon v. New York City Transit Authority was permitted to travel on the subways free of charge, there was absolutely no evidence in the record to indicate that the Transit Authority assumed an obligation, either by contract or custom, to facilitate her travel to and from work. Id. Furthermore, the employer in Lemon v. New York City Transit Authority, did not derive any benefit from claimant’s use of the subway system her pass to commute to and from work, as this was merely a fringe benefit, that could be used by Transit employees as they wished. Id. Lastly, the Court of Appeals noted that the use of these passes by employees was not limited to commuting, nor could we reasonably expect the Transit Authority to know which of its thousands of workers used the pass for that purpose. Id.

Practical Advice for Defending Off-Premises Claims.

In light of the above, whether an injury that occurs during a commuting activity is compensable where the employer furnishes the means of transportation, as an exception to the coming and going rule, is a factual determination to be made on a case by case basis determined by the Workers’ Compensation Board.  As outlined above, the significant factors to be considered in that determination are

  • whether there is reasonable nexus between the risk to which a claimant was exposed and the employment,
  • whether the employer assumed an obligation, either by contract or custom, to facilitate the employees travel to and from work, and
  • whether the employer derived a benefit from providing the means of transportation.

Join In the Learning!

The author of this article, Emily Flasz, recently presented a webinar on this topic, a video archive of which can be found here.

Emily Flasz is an associate attorney at Lois LLC where she defends employers and carrier in New York workers’ compensation claims. Emily can be reached directly at eflasz@lois-llc.com or 201-880-7213.