Common Defenses to New York Workers’ Compensation Claims

In New York State, the workers’ compensation system of law functions to provide benefits and protections to both the employers and the employees who work within the state. The benefit to the employee is that if he or she is injured while at work they will be entitled to workers’ compensation benefits whether or not they were negligent in causing their injury. Similarly, an employer’s negligence is also not legally considered and therefore, the injured employee cannot pursue claims against their employer for contributory or comparative negligence in civil court which could potentially result in huge judgments against employers.  However, not all work-related injuries are deemed compensable and therefore employers should be aware of some common defenses to workers’ compensation claims.

No Employer-Employee Relationship

According to workers’ compensation law, WCL §10, in order for an employee to be entitled to workers’ compensation benefits, he or she must be an actual employee of the employer when they are injured at work. Under the law, almost all individuals who provide services to a business will be deemed to be an employee unless explicitly excluded.

According to WCL §3, certain workers will not be considered “employees” for the purposes of workers’ compensation benefits, which is determined by factors such as how the worker was paid, who had the right to hire or fire the worker, and if  the worker was working under a separate contract/permit. The most common examples of workers who will not be considered to be employees of a business under workers’ compensation law are independent contractors and volunteers. Therefore, if such a person is injured while working for a business and files a claim for benefits, an employer will be able to raise the defense that there was no employer-employee relationship existing that would entitle such a worker to benefits.

Notice

WCL §18 directs that in order avail him or herself of workers’ compensation benefits an employee must provide notice to their employer within thirty (30) days after the accident causing the injury. The notice requirement ensures that the employer has the opportunity to investigate the facts surrounding the accident to determine the compensability of the claim. Notice can be actual or constructive.

In order to effectuate actual, express notice, an employee must notify the employer that they were injured in writing and include their name and address, the time and location of the accident, the nature and cause of the injury, and their signature.  Such notice can be mailed or delivered in person. An injured employee can also provide verbal notice of an accident to their supervisor and or administrators. Constructive notice can be established in situations where the facts and circumstances surrounding the accident serve to provide notice to employer and the lack of formal notice does not prejudice the employer. If an employee fails to provide their employer with sufficient notice of a work accident within the statutorily defined thirty (30) day time limit, and the employer raises a defense based upon lack of notice, the employee may be denied workers’ compensation benefits.

Statute of Limitations

Similar to the employer notice requirement under WCL §18 discussed above, WCL §28 requires that an injured employee file a claim for compensation with the Workers’ Compensation Board (WCB) within two (2) years of the accident occurring.  A claim for an occupational disease must be filed within two (2) years after the employee was disabled or knew or should have known that the disease causing the disability arose out of her employment. An employee formally provides notice to the WCB by filing an Employee Claim Form (Form C-3).

Intoxication

An employer can deny an employee’s claim for benefits if that employee’s injuries were solely caused by their intoxication. Intoxication refers to both alcohol and drug elicited behavior.  In theory, this defense seems very straightforward and simple. In practice, it becomes much more complicated because in order for an employer to avail itself of this defense as a means to deny benefits the employee’s injury must have been caused solely by the intoxication and without any other contributing factors.

A work-related injury will be found to be compensable if the employee can demonstrate that any other contributing factor existed at the time of the accident. For instance, if an employee was inebriated at work when he fell as the result of drunkenly stepping onto a wet spot on the floor, the injury will be found to be compensable despite the fact the claimant was intoxicated when he fell – even if it were the intoxication that caused him to fail to see or acknowledge the wet floor. WCL §21(4) directs that intoxication is not the sole factor in any injury.

Suicide

Generally, intentional self-injurious behavior that leads to an employee’s death at work is not considered to be a compensable injury entitling that person’s family to death benefits. Although over the last twenty-five (25) years the case law has carved out some specific exceptions to this general proposition.

Some exceptions include when a suicide is caused by a work-related injury that resulted in the employee suffering insanity, derangement, or cognitive deterioration; when a person suffers from severe depressive disorder which can be causally linked to her employment circumstances; or when a person suffers significant work-related stress which results in a depressive illness.

Intentional Injury

Workers’ compensation law will not apply to circumstances where an employee is intentionally injured by an employer or co-employee under WCL §10(1).  In these situations, an employee can bring a suit in a civil court for damages provided that the employee can demonstrate that the injury was caused by the employer or co-employee with a specific intent to harm her and not caused merely by the reckless or negligent conduct of the employer.

The burden falls on the injured employee to prove that the employer’s actions were intentional or that the co-employee was acting under direction of the employer.  If a co-worker intentionally injures an employee, the employee can bring a suit in civil court and collect workers’ compensation benefits, but any subsequent judgment awarded to the employee will be subject to a lien or reimbursement claim on behalf the employer and/or its insurance carrier or self-insured employer.

Personal Injuries

As was previously discussed, WCL §10 dictates that for a workers’ compensation claim to be compensable the associated accident must have arose out of and in the course of employment.

Idiopathic injuries, or spontaneous injuries of an unknown cause,  may create a defense to a claim if the employer can rebut the presumption that accidents arising in the course of employment arise out of the employment with “substantial evidence to the contrary” as dictated by WCL §21.  Idiopathic injuries can be understood as injuries that spawn from something personal to the employee such as a spontaneous fainting spell or when an employee claims that their leg simply “gave out” and they fell without tripping on anything.  Although difficult to prove, the employer can raise a defense to such claims by attempting to prove that the accident did not “arise out of or in the course or the employment.”

Another type of personal injury occurs when an employee is attacked at work by another person.  According to WCL §21, claims arising out of work attacks may be denied by the employer if the attack was not related to the worker’s employment and was not related to some duty performed for the benefit of the employer.  The attack must be an unequivocally personal attack, such as an attack from a scorned lover or estranged friend, in order to be found not compensable. Defending personal injury claims is very fact specific and it should be noted that an award for compensation may be sustained if there is any nexus between the motivation for the assault and the employment.

Recreational Activities

In 1983, WCL §10 was amended to provide that there is no liability for compensation where the injury was sustained in or caused by voluntary participation in an off-duty athletic activity not constituting part of the employee’s work related duties unless an employer: 1) requires the employee to participate in such activity, 2) compensates the employee for participating in such activity, or 3) otherwise sponsors the activity, such as by purchasing equipment.

Generally, activities that improve the health and/or morale of the employee, without any specific benefit to the employer are not compensable, unless the employer does something to affirmatively seek benefit or participate in the activity.  The most important factors to consider when denying claims based upon recreational activities are the voluntary nature of the act and whether or not the accident occurred on the employer’s premises.

Therefore, an employee who is injured while exercising at a gymnasium, not on the company’s premises, after work hours is not compensable, even if the employer paid for the employee’s gym membership – provided that the employer did not require or compensate the employee to work out at the gym. Such a claim should be denied.

Lunchtime Injuries

Injuries occurring during an employee’s lunch break, if the accident occurs off the employer’s premises, are generally not going to be compensable and therefore should be denied.  For instance, employees who have a fixed period of time for lunch are not considered to be in the course of their employment while they are away from employer’s premises for the purpose of eating or relaxing during a lunch break.

However, this is not a bright line rule and the specific facts of each situation will dictate the compensability of any claim. If an employee is still on duty during a lunch break, the fact that he or she may be off the employer’s premises when the injury occurs may not bar compensability. The issue to be determined will be whether or not the employer/employee relationship was terminated or suspended when the accident occurred.

Horseplay

Horseplay refers to situations in which employees engage in activities such as joking or playing which includes physical contact during work hours. Defending work-related injury claims caused by horseplay may prove to be a difficult task.  Such cases are very fact specific and will ultimately be determined by the continuity of practice which may render such activities incident to the employment relationship.

When workers’ compensation claims are denied based upon horseplay, each claim will be examined to determine the relationship of the injury to employment. In general, injuries sustained during horseplay will be found to be compensable based upon the policy argument that it is reasonable and natural that employees will be engaged in occasional play during work. When such horseplay occurs on the employer’s premises, especially with the employer’s knowledge and instrumentality, the injury will be found to be compensable.

However, horseplay injuries sustained from single, isolated acts of horseplay that have no continuity of practice may be found to not arise out of the employment relationship and not be compensable.  Therefore, in order to successfully defend a claim using horseplay as a defense, the employer must be able to prove that the incident of horseplay that resulted in the injury to the employee was a unique and isolated act with no nexus to employment.

Going and Coming

Typically, accidents that occur while an employee is on his or her way to or from work do not arise out of and in the course of employment because the risks of travel do not flow from the work relationship and therefore do not arise out of or in the course of the employment relationship.  The general rule is that an employee is not engaged in the course of employment until he or she reaches the premises of their employer.  Therefore, claims based upon injuries sustained during an employee’s commute to and from work can be denied.

However, there are several exceptions to the general rule.  In these situations the ‘coming and going’ defense will not prevail and such claims will be found to be compensable. Outside workers, such as traveling salesmen, typically do not work at a fixed location and are required to travel between work locations as a condition of their employment and therefore the travel does arise out of and in the course of their employment. If an employee is sent on a special errand by their employer to accomplish a specific, work related task and she is injured in the process, the injury will be compensable because the employee was traveling under the specific direction of her employer.  In situations where an employee is paid and required to use their own vehicle for work-related travel will be able to receive workers’ compensation benefits for injuries sustained during their travel. In addition, if an employee suffers an injury as he is entering or leaving the employer’s premises, such as accidents occurring in the employer’s parking lot, the accident will be deemed compensable because the accident occurred on the employer’s premises.

Voluntary Withdrawal From the Labor Market

If a claimant is receiving workers’ compensation benefits or a permanent partial disability a person has a persistent obligation to actively seek work that is within his or her restrictions. In other words, the person has to demonstrate an attachment to the labor market.  If a person has voluntarily withdrawn from the work force and cannot demonstrate an attachment to the labor market their benefits can been terminated or suspended.

The burden of proof regarding this defense rests upon the employer to show that the claimant receiving benefits has voluntarily withdrawn from the labor market.  To do so, the employer must compel the claimant to : 1)  demonstrate that they have looked for work in many places within their restrictions and 2) provide documentary evidence of an active participation in at least one New York State Department of Labor re-employment service as defined by case law.

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