Opinion
527193
04-25-2019
In the Matter of the Claim of Marcus WARNER, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent. Workers' Compensation Board, Respondent.
Geoffrey Schotter, New York City, for appellant. Jones, Jones, LLC, New York City (David Secemski of counsel), for New York City Transit Authority, respondent.
Geoffrey Schotter, New York City, for appellant.
Jones, Jones, LLC, New York City (David Secemski of counsel), for New York City Transit Authority, respondent.
Before: Lynch, J.P., Clark, Mulvey, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
Mulvey, J.Appeal from a decision of the Workers' Compensation Board, filed February 12, 2018, which ruled that claimant's injuries did not arise out of and in the course of his employment and denied his claim for workers' compensation benefits.
Claimant was employed as a subway train cleaner for the self-insured employer, assigned to work the 12:00 a.m. until 8:00 a.m. shift. At approximately 7:50 a.m. on April 18, 2016, claimant clocked out of work after completing his shift and took the train home. As claimant was disembarking the train, he was assaulted by another passenger, resulting in multiple injuries. The perpetrator apparently became irate by claimant's warning that a prior passenger had relieved herself in the seat where the perpetrator was about to sit. Claimant applied for workers' compensation benefits which, after a hearing, a Workers' Compensation Law Judge denied, finding that claimant's injuries did not arise out of and in the course of his employment. Upon review, the Workers' Compensation Board affirmed. Claimant appeals, and we affirm.
"An injury is only compensable under the Workers' Compensation Law if it arose out of and in the course of a worker's employment and, in general, injuries sustained in the course of travel to and from the place of employment do not come within the statute" ( Matter of Rodriguez v. New York City Tr. Auth., 161 A.D.3d 1501, 1501–1502, 77 N.Y.S.3d 225 [2018] [internal quotation marks and citations omitted], lv denied 32 N.Y.3d 916, 2019 WL 691181 [2019] ; see Workers' Compensation Law § 10[1] ; Matter of Neacosia v. New York Power Auth., 85 N.Y.2d 471, 474–475, 626 N.Y.S.2d 44, 649 N.E.2d 1188 [1995] ). "Injuries incurred while commuting to work are generally not covered because ‘the risks inherent in traveling to and from work relate to the employment only in the most marginal sense’ " ( Matter of Rodriguez v. New York City Tr. Auth., 161 A.D.3d at 1502, 77 N.Y.S.3d 225, quoting Matter of Lemon v. New York City Tr. Auth., 72 N.Y.2d 324, 327, 532 N.Y.S.2d 732, 528 N.E.2d 1205 [1988] ). Although there are recognized exceptions to this "going and coming" rule, none applies here and we find that substantial evidence supports the Board's determination that claimant's injuries sustained while traveling home from work are not compensable ( Matter of Neacosia v. New York Power Auth., 85 N.Y.2d at 475, 626 N.Y.S.2d 44, 649 N.E.2d 1188 ; see Matter of Rodriguez v. New York City Tr. Auth., 161 A.D.3d at 1502–1503, 77 N.Y.S.3d 225 ; Matter of Brennan v. New York State Dept. of Health, 159 A.D.3d 1250, 1251–1252, 73 N.Y.S.3d 277 [2018] ).
According to claimant, he finished his shift at 7:50 a.m., 10 minutes early, and clocked out, as he was permitted to do to compensate for coming in early. He left his assigned work train station and traveled on a train six stops on his way home, and was assaulted as he exited the train at approximately 7:55 a.m. Accordingly, at the time of the assault, claimant was not at his assigned train station, having clocked out of work, he was not on duty or performing any of the duties of his employment, and he was not on an errand for the employer (see Matter of Neacosia v. New York Power Auth., 85 N.Y.2d at 475–476, 626 N.Y.S.2d 44, 649 N.E.2d 1188 ; Matter of Rodriguez v. New York City Tr. Auth., 161 A.D.3d at 1502, 77 N.Y.S.3d 225 ). Rather, claimant was commuting home, "using the subways like the general public" ( Matter of Rodriguez v. New York City Tr. Auth., 161 A.D.3d at 1502, 77 N.Y.S.3d 225 ; see Matter of Brennan v. New York State Dept. of Health, 159 A.D.3d at 1251–1252, 73 N.Y.S.3d 277 ). There is no evidence that claimant was required to use the trains to commute to work or that the employer benefited from the route that he used to travel home. Although claimant opted to wear a jacket and hat bearing his employer's logo at work and during his commute, he was not required to do so, and they were not provided by the employer; claimant was wearing a safety vest issued to him with the employer's logo, however, he was only required to wear this while working and not during his commute home. Contrary to claimant's argument, the presumption embodied in Workers' Compensation Law § 21(1), "that an accident that occurs in the course of employment also arises out of such employment" ( Matter of Elias–Gomez v. Balsam View Dairy Farm , 162 A.D.3d 1356, 1357, 78 N.Y.S.3d 515 [2018] ), is inapplicable here as claimant was not doing anything that was "in the course of employment" at any point during his commute, including when he was assaulted.
Although injuries resulting from work-related assaults are compensable under certain circumstances, given that the incident occurred six train stops away from claimant's assigned station, after he had completed his shift, and that he was not performing any services for the employer on his commute home, the record supports the Board's determination that there was no nexus between the motivation for the assault and claimant's employment (see Matter of Rodriguez v. New York City Tr. Auth., 161 A.D.3d at 1503, 77 N.Y.S.3d 225 ; Matter of Belaska v. New York State Dept. of Law , 96 A.D.3d 1252, 1253, 946 N.Y.S.2d 904 [2012], lv denied 19 N.Y.3d 814, 2012 WL 5200324 [2012] ; see also Matter of Lemon v. New York City Tr. Auth., 72 N.Y.2d at 327–328, 532 N.Y.S.2d 732, 528 N.E.2d 1205 ; cf. Matter of Rosen v. First Manhattan Bank , 84 N.Y.2d 856, 857, 617 N.Y.S.2d 455, 641 N.E.2d 1073 [1994] ; Matter of Seymour v. Rivera Appliances Corp. , 28 N.Y.2d 406, 409, 322 N.Y.S.2d 243, 271 N.E.2d 224 [1971] ; Matter of Mosley v. Hannaford Bros. Co. , 119 A.D.3d 1017, 1017–1018, 988 N.Y.S.2d 303 [2014] ; Matter of Wilson v. General Mills, 73 A.D.3d 1246, 1246–1247, 899 N.Y.S.2d 677 [2010], lv denied 15 N.Y.3d 716, 2010 WL 5110125 [2010] ). Accordingly, although the assault was most unfortunate, the Board correctly concluded that claimant's injuries sustained in the course of travel home from his place of employment are not compensable (see Matter of Rodriguez v. New York City Tr. Auth., 161 A.D.3d at 1501–1502, 77 N.Y.S.3d 225 ; see also Workers' Compensation Law § 10[1] ; Matter of Neacosia v. New York Power Auth., 85 N.Y.2d at 474–475, 626 N.Y.S.2d 44, 649 N.E.2d 1188 ; Matter of Belaska v. New York State Dept. of Law , 96 A.D.3d at 1253, 946 N.Y.S.2d 904).
Lynch, J.P., Clark, Aarons and Rumsey, JJ., concur.
ORDERED that the decision is affirmed, without costs.