NY Court Agrees Claimant’s Injuries Occurred Within “Gray Area” of Employment
Reiterating New York’s special “gray area” rule, pursuant to which injuries sustained in public areas near the employment—but not on the employer’s premises—are nevertheless compensable where the risks of street travel merge with the risks attendant with employment, a state appellate court affirmed a decision of the Workers’ Compensation Board awarding benefits to a hospital worker struck by a vehicle as the worker attempted to cross a public street adjacent to his employer’s loading dock [Matter of Cadme v. FOJP Serv. Corp., 2021 N.Y. App. Div. LEXIS 4636 (3d Dept. July 22, 2021)]. The normal going and coming rule did not apply in spite of the fact that the worker had not yet clocked in and was not physically present upon the employer’s premises.
Background
Claimant, a food service worker at a New York hospital, sustained serious injuries when he was struck by a motor vehicle while walking towards the hospital entrance prior to the start of his work shift. The WCLJ established the claim for a work-related head injury and set claimant’s average weekly wage. The Board, with one Board member dissenting, affirmed the decision of the WCLJ. The full Board subsequently granted the carrier’s request for mandatory full Board review. Upon its mandatory full Board review, the full Board determined that, based upon the regular use by claimant and other food service workers of a hospital entrance in the loading dock area in close proximity to the accident site and because a special hazard existed at the place where the accident occurred, claimant’s accident arose out of and in the course of his employment. The carrier appealed from the full Board’s decision.
New York’s Gray Area Rule
The appellate court initially noted that generally, accidents that occur outside of work hours and in public areas away from the workplace are not compensable. The court stressed, however, that where, as here, the accident occurred near the claimant’s employment, there develops a “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. In such a situation, the resulting injuries are compensable only if there was:
- A special hazard at the particular off-premises point and
- A close association of the access route with the premises, as far as going and coming are concerned, permitting the conclusion that the accident happened as an incident and risk of employment.
Circumstances of the Accident
The appellate court reviewed the record, noting that the accident occurred at approximately 6:06 a.m., that it was dark outside, given the early hour of the morning, and that claimant, as he routinely did, had parked his car on the western side (southbound) of Route 9W, a public roadway, to access and enter the hospital’s loading driveway and dock entrance, located on the eastern side of Route 9W. Vehicles were not permitted to park on the eastern side of Route 9W near the loading dock area, and there was no crosswalk at the location where claimant was attempting to cross Route 9W.
At the time of the accident, claimant was crossing Route 9W from west to east and entered the northbound lane as he walked toward the hospital’s loading dock entrance. At that moment, the driver of a large SUV, who had entered the loading dock area from the northbound lane to make a U-turn, made an unsafe left turn out of the hospital loading dock driveway, and the vehicle struck claimant.
A member of the hospital’s HR department testified that food trucks and other “big trucks” used the loading dock driveway to access the hospital. Claimant and the other food service workers used the loading dock entrance, which was a different entrance to access the hospital than that which was used by the public. The employer’s representative added that Route 9W was not a safe street to cross and that often, employees were required to run to get across safely.
Evidence Established Gray Area
The court found that from the foregoing, the Board could reasonably determine that a special hazard existed due to the unavailability of parking along the eastern side of Route 9W, requiring claimant to, at a certain spot without a crosswalk, cross Route 9W—a dangerous public roadway—to access the loading dock entrance, which, significantly, was not used by the public and regularly used by claimant. The court added that, based upon the regular use of the loading dock entrance by claimant and other food service workers, combined with the close proximity of the accident to the loading dock area, there was a close association of the access route with the premises, as far as going and coming were concerned, permitting the conclusion that the accident happened as an incident and risk of employment. Substantial evidence supported the Board’s finding that the accident had occurred within the “gray area” of the employment.