Determining eligibility for workers' compensation benefits when an employee is injured while "off duty"

A New York City Transit Authority [Authority] employee [Claimant] was assigned to work the 12:00 a.m. - 8:00 a.m. shift. Claimant "clocked out" ten minutes early "having completed his shift" and took an Authority train to return home.

As Claimant left the train, he was assaulted by another passenger, suffering multiple injuries and applied for workers' compensation benefits. The Workers' Compensation Law Judge denied Claimant's application for benefits, ruling that Claimant's injuries "did not arise out of and in the course of his employment." Upon review, the Workers' Compensation Board affirmed the Law Judge's ruling and Claimant appealed the Board's decision.

The Appellate Division affirmed that Board's determination, explaining that 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."*

Further, opined the Appellate Division, "[a]lthough 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" as at the time of the assault, Claimant was not at his assigned train station, and "having clocked out of work," he was not on duty or performing any of the duties of his employment, nor was Claimant on an errand for the employer and there was 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.

One such exception alluded to in the decision is demonstrate in Neacosia v New York Power Authority, [NYPA] 85 NY2d 47. 

In Neacosia, the Court of Appeals decided that Neacosia, a NYPA security officer, who was injured in a car accident 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.

NYPA "provided its security officers with uniforms and required that they keep the uniforms clean and presentable." To assist in this, NYPA had made arrangements with a number of cleaning establishments in the area to clean the uniforms and bill the agency for their services.**

After completing his shift Neacosia stopped to deliver his uniforms to one of the cleaners recommended by the Authority on his way home. After leaving his uniform at the cleaner's, Neacosia headed home along his usual route and was  involved in an automobile accident, sustaining severe injuries.

Claiming that his injuries arose out of and in the course of his employment, Neacosia filed for workers' compensation benefits. NYPA controverted the claim but ultimately  the Court of Appeals affirmed the Workers’ Compensation Board's determination that Neacosia suffered an injury that arose “out of and in the course of [his] employment" because the security officer used one of the facilities with which NYPA had made arrangements to do the cleaning and bill NYPA for the cleaning services it provided to the security officer.

* The Appellate Division cited Lemon v New York City Tr. Auth., 72 NY2d 324, in which the Court of Appeals ruled that "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.'"

** In the alternative, security personnel could arrange for the uniform's cleaning to be done by a cleaner not on NYPA's list of cleaners and submit his or her bill for the cost of the cleaning to NYPA for reimbursement. However, a security officer electing to avail himself or herself of this alternative option may not come within the ambit of the rationale applied by the Court of Appeals in Neacosia.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03122.htm

Guidelines followed by the judiciary in adjudicating motions to confirm or deny arbitration awards

In a proceeding pursuant to CPLR Article 75 brought by Petitioner [P] to confirm two arbitration awards, the Respondent [R] cross-petitioned to vacate the awards. Supreme Court confirmed both arbitration awards and denied R's cross-petitions. R appealed the Supreme Court's decisions.

The Appellate Division affirmed Supreme Court's ruling, explaining:

1. Judicial review of arbitration awards is extremely limited and unless the court determines that the arbitration award "violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on the arbitrator's powers," it may not be vacated;

2. The party seeking to vacate an arbitration award bears a "heavy burden" of proving by "clear and convincing evidence" that impropriety by the arbitrator prejudiced that party's rights or impaired the integrity of the arbitration process;

3. Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies;

4.  A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes the court's interpretation would be the better one; and

5. Even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the arbitration award to the court's sense of justice.

Finding that R did not contend that the arbitration awards violated public policy or exceeded a specifically enumerated limitation on the arbitrator's powers, nor that the arbitration awards were irrational, the Appellate Division said it agree with the Supreme Court's [1] determination granting P's petition to confirm the awards; [2] the lower court's denying D's cross-petition; and [3] its confirming both of the arbitration awards.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03053.htm

Revealing confidential records resulting a youthful offender adjudication distinguished from answering questions about the facts underlying the incident.

The plaintiff, [P], allegedly was injured as a result of a physical altercation with D, the defendant, which had occurred in the hallway of the high school that they both attended at that time.

When, in the course of discovery during the litigation that followed in P's effort to recover damages for personal injuries she had allegedly suffered as the result of certain actions by D, D's attorney refused to produce D, who had been adjudicated a youthful offender, contending that, pursuant to the Criminal Procedure Law §720.35(2) [CPL], the information sought by P was protected by the confidentiality provisions provided by law with respect to adjudications involving youthful offenders.

P then asked Supreme Court to grant her motion to compel D to appear for, and answer questions at, the deposition. The court granted P's motion, denying D's legal guardian's motion for a protective order precluding the deposition of D. D's legal guardian appealed the Supreme Court's decision.

The Appellate Division affirmed the Supreme Court's ruling, explaining that the relevant provisions of law concerning youthful offender status set out in the CPL were the result of  "a legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals."

The primary advantage of youthful offender treatment, said the court, is "the avoidance of the stigma and practical consequences which accompany a criminal conviction." Further, noted the Appellate Division, CPL §720.35[1] provides that "youthful offender adjudication is not a judgment of conviction for a crime or any other offense" and consistent with "the statutory goal that eligible youths not be stigmatized by a youthful offender adjudication," provides that records relating to the prosecution shall be sealed.

However, opined the Appellate Division, the statutory grant of confidentiality afforded to such official records and the information contained therein "does not extend to the facts underlying the incident which gave rise to the youthful offender adjudication." Thus an eligible youth may not refuse, on grounds of confidentiality, to answer questions about the facts underlying the subject incident, "even though those facts also form the basis of his or her youthful offender adjudication."

The Appellate Division concluded that although D cannot be compelled to divulge the contents of the confidential records underlying her youthful offender adjudication, D can be compelled to answer questions about the facts underlying the incident.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03019.htm

May 2019 AELE case notes and publications alert

*** Law Enforcement Liability Reporter ***

This issue has cases on assault and battery: chokeholds, assault and battery: handcuffs, electronic control weapons: stun mode, false arrest/imprisonment: no warrant, false arrest/imprisonment: warrant, firearms related: intentional use, First Amendment, forfeiture proceedings, pursuits: law enforcement, and terrorism and national security issues. View at:
http://www.aele.org/law/2019all05/LR2019MAY.html

*** Fire, Police & Corrections Personnel Reporter ***

This issue has cases on drug screening, First Amendment, handicap/abilities discrimination: accommodation in general, national origin discrimination, pensions, political activity, retaliatory personnel actions, security clearances, and veterans and other preference laws. View at:
http://www.aele.org/law/2019all05/FP2019MAY.html

A probationary educator may be summarily terminated during his or her probationary period provided it is not unlawful or made in bad faith

When the New York City Department of Education [DOE] terminated an individual [Educator] serving in a civil service position in the Unclassified Service* during his probationary period, Educator file a petition pursuant to CPLR Article 78 seeking a court order annulling his dismissal from his position and directing DOE to reinstate him to his former position.

Supreme Court dismissed Educator's petition and the Appellate Division unanimously affirmed the lower court's ruling, explaining that, as the Court of Appeals held in Duncan v Kelly, 9 NY^3d 1024, that Duncan, a probationary police officer, could be terminated without "notice and hearing" for any reason or no reason at all, as long as the dismissal was not unlawful or made in bad faith.**

Educator, said the Appellate Division, "alleges no facts to show that his termination was for an illegal or an improper reason" and his characterization of his termination as having been made in bad faith was "purely speculative." In contrast, the court observed that the record indicated that Educator was terminated for misconduct and for violating certain relevant regulations.  

Addressing Educator's contention that DOE's Office of Special Investigations "failed to interview one particular student" and failed to provide him with certain "investigatory materials," the Appellate Division opined that those "alleged irregularities in the process ... without more, do not constitute bad faith or a deprivation of a substantial right."

* See §35 of the Civil Service Law. §2573 of the Education Law, addressing the appointment of assistant, district or other superintendents, teachers and certain other employees, provides, in pertinent part, that "[t]he service of a person appointed to any of such positions may be discontinued at any time during [his or her] probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education."

** "Police officer" is a position in the Classified Service of the Civil Service. Case law indicates that a probationary employee serving a position in the Classified Service may be summarily terminated at any time after completing his or her minimum period of probation prior to completing his or her maximum period of probation without notice and hearing unless otherwise provided by the terms of a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to his or her termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position. 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2019/2019_03141.htm