Pre-Shift Assault on NYC Train Conductor at Station Not Compensable

Claimant Fails to Establish Exception to Going and Coming Rule

Yesterday, a New York appellate court affirmed a decision of the state’s Workers’ Compensation Board that denied the claim of a Transit Authority conductor who sustained injuries when she was assaulted by commuter who was angered over the claimant’s refusal to open the station gate to let him in (without paying) on the basis that the claimant’s injuries did not arise out of and in the course of the employment [Matter of Rodriguez v New York City Tr. Auth., 2018 N.Y. App. Div. LEXIS 3842 (May 31, 2018)]. The Court agreed that the claim was barred by the going and coming rule, since, inter alia, the assault occurred approximately one hour prior to the beginning of the claimant’s shift and the employer did not require her to utilize public transit to get to her job.

Being “in Uniform” Was Not a Controlling Factor

The Court agreed with the Board that the Transit Authority neither encouraged nor benefitted from the claimant’s commute route. It stressed that, at the time of the assault, claimant was not yet on duty or at her assigned station and was not performing any duties of her employment or undertaking an errand for the employer. The Court acknowledged that the claimant was in uniform and that she did have a transit pass on her person, but the Court found that the claimant was not required to wear her uniform while en route to her job, nor was it clear from the record that the Transit Authority was contractually bound to provide her with the pass.

No Causal Nexus Between Employment and Assault

According to the Court, the claimant was a commuter using the subways like the general public and, while she was on property owned and operated by her employer, substantial evidence supported the Board’s determination that this did not establish a casual connection between her employment and the assault. The Court also agreed with the Board that the dual purpose exception to the going and coming rule did not apply; there was no evidence that her travel served both a business and personal purpose.

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