January 23, 2020

Exceptions to the "going and coming" rule in determining if an injured employee was performing his job duties at the time he suffered an injury


A state park police officer [Claimant] filed an application for performance of duty disability retirement benefits with the New York State and Local Police and Fire Retirement System [System] alleging that he was permanently incapacitated from the performance of his duties as a result of a slip and fall on his employer's premises.

The System denied Claimant’s application, finding that he failed to establish permanent incapacitation. Claimant requested a hearing and redetermination of the Systems determination. The designated Hearing Officer sustained the System’s the denial of Claimant’s application, finding that the Claimant was not in service at the time he suffered his injuries. The Comptroller accepted the Hearing Officer’s findings and conclusions and the Claimant filed a CPLR Article 78 petition challenging the Comptroller’s decision.

The Appellate Division commenced it review of Claimant’s appeal by noting that the claimant bears the burden of proving that he was "[p]hysically or mentally incapacitated [from] performance of duty as the natural and proximate result of a disability . . . sustained in such service" and the individual “was performing job duties at the time of the injury.”*

The court then noted that at the hearing Claimant testimony “made apparent that he was actually on his way into work at the time of his injury, not ‘on duty and at work’ as he stated in his application for benefits.” In the words of the Appellate Division, “[Claimant’s] own testimony establishes that he slipped and fell on icy stairs on his way into work prior to the start of his shift, and we have upheld findings that an employee who is injured before reporting for work and commencing his or her duties is not ‘in service’ when the injuries were sustained.”

Thus, said the court, the Comptroller's determination that claimant was not in service at the time he sustained his injury is accordingly supported by substantial evidence, and it declined to disturb it.
Although the general rule is that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law, there are certain exceptions to this "going and coming" rule. One such exception arises when the employee is engaged in a "special errand" for the employer.

In Neacosia v NY Power Authority, 85 NY2d 471, the Court of Appeals affirmed the Workers’ Compensation Board’s decision that a security officer [Officer], who was injured after he stopped on his way home to leave his work uniform at a cleaning shop, was acting within the scope of his employment and thus was eligible for workers' compensation benefits.

Officer was employed by the New York State Power Authority. The Authority provided its security officers with uniforms and required that they keep the uniforms clean and presentable. To this end the Authority had made arrangements with a number of cleaning establishments to clean their security officers’ uniforms and bill the agency for their services. In the alternative, security personnel could arrange for the cleaning themselves and then submit bills to the Authority for the cost of the cleaning.

Officer was driving home after completing his shift. Under the facts giving rise to Officer’s claim, which were stipulated, the Administrative Law Judge [ALF] found the Officer’s travel had a dual purpose that served to extend the scope of his employment as he was leaving a designated cleaning establishment after leaving his uniforms to be cleaned.

The Workers’ Compensation Board affirmed the ALJ’s determination, illustrating one of the exceptions to the general rule that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law. Here the Board found that Officer was engaged in a "special errand" for the employer. The Court of Appeals sustained the Workers’ Compensation Board's ruling that Officer was engaged in a "special errand" at the time he was injured and thus eligible for Workers' Compensation benefits.

* See Retirement and Social Security Law §363-c[b][1].

The decision is posted on the Internet at:

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