Opinion
526091
10-04-2018
In the Matter of the Claim of Shelly A. GROVER, Appellant, v. STATE INSURANCE FUND, Respondent. Workers' Compensation Board, Respondent.
Bronk & Somers, PC, Rochester (Mark C. Somers of counsel), for appellant. Hamberger & Weiss, Rochester (Joseph P. DeCoursey of counsel), for State Insurance Fund, respondent.
Bronk & Somers, PC, Rochester (Mark C. Somers of counsel), for appellant.
Hamberger & Weiss, Rochester (Joseph P. DeCoursey of counsel), for State Insurance Fund, respondent.
Before: Garry, P.J., Egan Jr., Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeal from a decision of the Workers' Compensation Board, filed March 9, 2017, which ruled that claimant's injury did not arise out of and in the course of her employment and denied her claim for workers' compensation benefits.
Claimant applied for workers' compensation benefits, claiming that she injured her left shoulder on her way to work when she reached out of her car window to scan her parking pass in order to enter a parking garage located at her employer's building. Following a hearing, a Workers' Compensation Law Judge established the claim. Upon review, the Workers' Compensation Board reversed, finding that claimant's injury did not arise out of and in the course of her employment. Claimant appeals. We affirm.
A compensable injury under the Workers' Compensation Law requires that it arise both out of and in the course of employment (see Workers' Compensation Law §§ 2[7] ; 10[1] ). "In general, accidents that occur outside of work hours and in public areas away from the workplace are not compensable" ( Matter of O'Neil v. City of Albany Police Dept., 81 A.D.3d 1048, 1048–1049, 916 N.Y.S.2d 313 [2011] [citation omitted]; see Matter of Husted v. Seneca Steel Serv., 41 N.Y.2d 140, 142, 391 N.Y.S.2d 78, 359 N.E.2d 673 [1976] ). Regarding a parking lot, if it is maintained by the employer, then it "constitutes precincts of employment" ( Matter of Ott v. Gem Elec. Mfg. Co., 44 A.D.2d 331, 332, 355 N.Y.S.2d 28 [1974] ). Our task is to determine whether the Board's conclusion is supported by substantial evidence; if so, it should not be disturbed (see Matter of Figueroa v. Perfect Shoulder Co., Inc., 68 A.D.3d 1586, 1587, 891 N.Y.S.2d 704 [2009] ; Matter of Tompkins v. Morgan Stanley Dean Witter, 1 A.D.3d 695, 695, 766 N.Y.S.2d 923 [2003] ).
The record evidence establishes that claimant injured herself as she extended her arm from within her car to scan her pass at a kiosk to gain entrance into the parking garage that she utilized for her job. The garage was also open to the general public and employees of other building tenants, and, to enter the garage, they would have to obtain a ticket or scan a pass at the same kiosk. Within the garage, there was a parking area that was dedicated for building tenants, including the employer, and their employees. Furthermore, although the employer provided free parking to claimant, the garage was owned by the building owner and maintained by a third-party operator.
To access this dedicated area, an individual would have to similarly scan a pass at a kiosk with a gate. Claimant, however, did not injure herself at this location.
In concluding that claimant's injury was not compensable, the Board found that the parking garage was utilized by members of the public, as well as other businesses located within the same building as the employer. The Board further noted that the employer did not own or maintain the garage. These facts, which the Board credited, lead to the conclusion that the employer did not extend its premises to the area where claimant's injury occurred (see Matter of Lawton v. Eastman Kodak Co., 206 A.D.2d 813, 814, 616 N.Y.S.2d 412 [1994] ; compare Matter of Thatcher v. Crouse–Irving Mem. Hosp., 253 A.D.2d 990, 991, 678 N.Y.S.2d 161 [1998] ). Although facts exist that would support a contrary result, given that substantial evidence supports the Board's decision, we discern no basis to disturb it (see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ).
Even if the incident giving rise to claimant's injury occurred in that "gray area where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation" (Matter of Husted v. Seneca Steel Serv., 41 N.Y.2d at 144, 391 N.Y.S.2d 78, 359 N.E.2d 673 [internal quotation marks omitted] ), a compensable injury still would not exist because the risk of injury from reaching out of a car to scan a parking pass was a risk shared by the general public and was not a special hazard (see Matter of Cushion v. Brooklyn Botanic Garden, 46 A.D.3d 1095, 1096, 847 N.Y.S.2d 307 [2007], lv denied 10 N.Y.3d 704, 857 N.Y.S.2d 36, 886 N.E.2d 801 [2008] ).
Devine and Clark, JJ., concur.
We respectfully dissent. The proper disposition of this case is not based upon our substantial evidence standard of review, as this is not a case where the Workers' Compensation Board was weighing and balancing conflicting evidence. There was no relevant conflicting evidence. The location and circumstances of the underlying event are not disputed; claimant does not challenge the factual findings, but instead addresses the appeal solely to the resulting legal determination. In this case, the Board was required to apply the policy established by precedent to the relevant undisputed facts. As the Board failed to properly apply this precedent in rendering the determination, we would reverse, based upon the law.
It has been established that, "[a]s a general rule, accidents that occur in public areas away from the workplace and outside of work hours are not compensable" ( Matter of Stratton v. New York State Comptroller, 112 A.D.3d 1081, 1082, 977 N.Y.S.2d 430 [2013] [internal quotation marks and citation omitted]; accord Matter of Brennan v. New York State Dept. of Health, 159 A.D.3d 1250, 1251, 73 N.Y.S.3d 277 [2018] ). However, case law further instructs that "[a]n employer, by making arrangements for employee parking, may be found to have extended its premises to the area of the approved parking facility so that an accident that occurs therein may be found to have arisen within the precincts of the claimant's employment, rendering it compensable. This is particularly true where the claimant is injured on the way to work and in such physical proximity to his or her worksite as to establish a relationship between the accident and the employment" ( Matter of Thatcher v. Crouse–Irving Mem. Hosp., 253 A.D.2d 990, 991, 678 N.Y.S.2d 161 [1998] [citations omitted]; accord Matter of Stratton v. New York State Comptroller, 112 A.D.3d at 1082, 977 N.Y.S.2d 430 ).
Here, the privately-owned parking garage was located underneath the building where claimant worked, and her office was accessible by elevator from inside the garage. Although some portions of the garage were open to the public, claimant used a section available exclusively to employees located in the building by use of a parking pass. Significantly, the employer assigned claimant to a parking space in the garage and provided a parking pass to her at no charge, thus affirmatively encouraging claimant to park there. There is thus "a sufficient nexus in time and place between the parking facility, the use of which was fully endorsed by the employer, and the employer's premises to render claimant's accident compensable as occurring within the precincts of her employment" ( Matter of Thatcher v. Crouse–Irving Mem. Hosp., 253 A.D.2d at 991, 678 N.Y.S.2d 161 ; see Matter of Stratton v. New York State Comptroller, 112 A.D.3d at 1082, 977 N.Y.S.2d 430 ). The facts necessarily constitute substantial evidence by application of established legal precedent. Accordingly, we would reverse.
This section of the parking garage was available for use only by employees of the businesses located in the building where claimant worked.
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Egan Jr., J., concurs.
ORDERED that that the decision is affirmed, without costs.