Tag Archives: WCL §21

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