Overcoming New York’s Legal Presumption that the Injury Arose Out of the Employment with a Personal Risk Defense

Every New York Workers’ Compensation claimant is availed five (5) presumptions.

  1. An accident which occurs in the course of the employment is presumed to arise out of the employment;
  2. “Notice” is presumed to have been received by the employer;
  3. Benefits are denied for intentional injury;
  4. Benefits are denied for injuries solely caused by intoxication; and
  5. Claimant’s medical reports are accepted prima facie by the WCB.

This article focuses on the first presumption, which holds that an accident which occurs during working hours is presumed to arise out of the employment.

The first presumption.

The first presumption is that an accident which occurs in the course of employment is presumed to arise out of the employment. This is a temporal/substantive link: if the injury occurs at work and during the work day, it is presumed the injury arose out of and in the course of employment.

If the activity the claimant was undertaking at the time of the accident was purely personal it would not be within the scope of the employment and the presumption would be rebutted.

Assaults at work – challenging the presumption.

Injuries from purely personal acts are not compensable. This is the “personal risk doctrine.” Activities which demonstrate a purely personal pursuit, do not fall within the scope of employment. An assault occurring at work is accordingly presumed to have also arisen out of the employment, a presumption that can be rebutted with substantial evidence that the assault was motivated by purely personal animosity. See WCL § 21; Matter of Rosen v. First Manhattan Bank, 84 N.Y.2d 856, 857 (1994); Matter of Turner v. F.J.C. Sec. Servs., 760 N.Y.S.2d 602 (2003).

In looking at cases where the employer raises this defense, the WCB will consider how work-related the activity was that led to the injury.

A good example is the retail employee who is attacked at work. If the attacker was a random store customer, or someone who walked into the store to rob it, then the incident will likely be found to be compensable. However, if the employee is attacked by an estranged lover, for purely personal reasons, and the attack just happened to take place at work, then the injuries resulted from a purely personal circumstance and will likely not be found to be compensable.

Two recent cases applied this rule.

Employee’s Injuries Arose from a Personal Risk.

In Wadsworth v. K-Mart Corp., the Workers’ Compensation Board found emotional injuries sustained by a claimant whose car was stolen while she was at work were compensable. Bizarrely, a week after the car was stolen, the claimant saw the car idling in the parking lot at work. When the claimant approached the vehicle, she became involved in a scuffle with the driver. At the same time, a co-worker emerged from the place of work, jumped in the car, and the stolen car took off. The Board ruled against the employer, citing the fact that a co-worker was apparently involved in the theft of the car, and found the matter compensable.

The employer appealed, arguing that the incident did not arise out of the course of the employment and was purely a personal matter.

The Appellate Court agreed with the employer, and overturned the award. The Appellate Court ruled that while there was a question of fact for the Board to decide, and an award of benefits is proper if “there is any nexus, however slender, between the motivation for the assault and the employment,” the decision must be based on “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229, (1938); accord Matter of Russo v. HRT, Inc. of Orange County, 667 N.Y.S.2d 854 (1998), lv. denied 676 N.Y.S.2d 128 (1998).

The Appellate Court reasoned that “the statutory presumption was rebutted by substantial evidence presented that the motivation for the assault was purely personal animosity between claimant and the individual she discovered driving her stolen vehicle. . . Claimant’s assailant was not a coworker or otherwise connected to her employment and there is no work-related explanation given for the altercation.” The decision of the WCB was overturned as arbitrary.

Not a personal risk.

In Deborah Wilson v. General Mills, the Appellate Division reviewed an award of compensation benefits filed by Deborah Wilson. In the Wilson case, the Claimant, a general mechanic, filed a claim for workers’ compensation benefits after a coworker struck her in the face with what was variously described as an air regulator or valve. Claimant and her assailant had a long history of difficulties. While claimant described repeated harassment due to race and gender, she also testified that the assailant had “defamed” her abilities and work as a mechanic by stating that she was a “bad mechanic,” and influencing other coworkers to believe this was true. Even the affidavit that claimant filed with the Equal Employment Opportunity Commission in support of her discrimination complaint, upon which the employer and its carrier relied upon, suggested that at least some of the assailant’s offensive comments and conduct stemmed from a promotion and pay raise that claimant received in 2005.

In Wilson, the Appellate Court found a “nexus between the employment and the injury” and so found the assault injury compensable.

Practical advice

When analyzing cases involving assaults or harms to an employee which may be due to a purely personal risk, consider whether the fact pattern more closely fits one of the two scenarios above. Was the occurrence of the assault or harm at work merely incidental? Was the assault or harm motivated by a purely personal animus? Did the employment expose the claimant to an increased risk of this type of harm? By analyzing the case facts carefully counsel may have grounds to challenge the first presumption that “an injury that occurs at work arose from the employment” and is therefore compensable.

Greg Lois is the managing partner of LOIS LLC, a 21-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com