The Full Board, at its meeting on December 18, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision duly filed and served on September 12, 2011.
The issue presented for Mandatory Full Board Review is whether decedent's death arose out of or in the course of her employment.
In a decision filed on March 8, 2011, the Workers' Compensation Law Judge (WCLJ) found that decedent's death did not arise out of or in the course of her employment and disallowed the claim.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would establish the claim for a causally related death because the decedent faced a special hazard not encountered by the general public when she died.
On September 26, 2011, the claimant filed an application for Mandatory Full Board Review, arguing that a finding of causally related death is warranted here since the route taken by the decedent to work had a close association with the employer's premises and the employer was aware that employees used the parking lot across the street, and such use was endorsed and anticipated by the employer.
On October 24, 2011, the group self-insured (GSIT) filed a rebuttal, arguing that that the decedent was not exposed to a special hazard or risk not shared by the general public, and there is no evidence that the route traveled was controlled or endorsed by the employer.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant filed a form C-62 (Claim for Compensation in a Death Case), dated July 29, 2010, indicating that on December 7, 2009, the decedent, then a 73 year old bus matron, was crossing the street on her way to work when she was struck by a car and subsequently died. The form C-62 further indicated that the employer had advised the decedent to park in the Apple Bank parking lot (bank lot) due to inadequate parking for its employees.
The GSIT controverted the claim.
A former bus driver for the self-insured employer testified on December 6, 2010, that the employer did not have a big enough parking lot for all its employees, which required the employees to have to find alternative parking. Many employees parked in the Apple Bank parking lot. The bus driver believes that the employer knew employees were parking in the Apple Bank parking lot. An employee would have to cross the highway from the Apple Bank parking lot to get to the employer's premises.
The self-insured employer's risk manager testified on December 6, 2010, that there was limited parking in front of the employer's building (the bus terminal to which the decedent was assigned), which was available on a first come, first served basis. The self-insured employer did not direct employees to park in a specific location. The employer had no arrangements to procure parking for employees. There was a large parking lot located at the employer's corporate headquarters located ten to twelve blocks from the bus terminal. The self-insured employer allowed bus matrons to park at its corporate headquarters and had a system in place where an individual bus driver would pick them up and transport them to their work location. The self-insured employer did not have any arrangement with Apple Bank to provide parking for employees. Apple Bank is located in a strip mall and its lot is open to the public. Employees were not directed to park in any specific area.
The self-insured employer's assistant general manager testified on December 6, 2010, that there was a parking lot for employees at the terminal. Parking in the lot was on a first come, first served basis. The parking lot held 50 cars and about 100 employees came to work each day. The employees were not required to have a car as part of their employment and some employees carpooled. There was not enough space in the lot for all the employees to park. It was the responsibility of the employees to find parking. The employer never directed employees to park elsewhere. The employer did not have any arrangement with other public or private parking lots. The Apple Bank is located in a building diagonally across the street from the employer's location. The assistant general manager indicated that he was not aware that employees parked at the Apple Bank. He knew the decedent and was aware she was in an accident. He did not know where she parked.
In a Notice of Decision filed on March 8, 2011, the WCLJ found that decedent's death did not arise out of or in the course of employment and disallowed the claim.
"'As a general rule, accidents occurring on a public street, away from the place of employment and outside working hours, are not considered to have arisen in the course of employment' (Matter of Jacobs v Dellwood Foods, 130 AD2d 848 , lv denied 70 NY2d 608 ). However, 'as the employee comes in closer proximity with his [or her] employment situs, 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' (Matter of Husted v Seneca Steel Serv., [41 NY2d 140 (1976)]). '[T]he test of compensability in this "gray area" is whether the accident happened as an incident and risk of employment' (Matter of Jacobs v Dellwood Foods, supra at 849). That is, there must be (1) 'a special hazard at the particular off-premises point' and (2) a 'close association of the access route with the premises, so far as going and coming are concerned' (Matter of Husted v Seneca Steel Serv., supra at 142)" (Matter of Harris v New York State Off. of Gen. Servs., 13 AD3d 796  [additional citations omitted]).
The claimant in Husted was involved in an accident while making a left turn across traffic in a public street in order to enter a driveway that provided the only means of ingress and egress to his place of employment. There, the Court of Appeals noted,
[t]he risk of employment, the special hazard, could be found in the necessity of making the left turn across traffic in a public street in order to enter the plant. There was a causal relation, a distinct "arising out of," between the employment and the accident and, in making the left turn at this point, claimant was exposed to a particular risk not shared by the public generally. Since the general public would not be making a turn at this junction. (Husted at 145 [additional citations omitted]).
Conversely, in Matter of Harris v New York State Off. of Gen. Servs., 13 AD3d 796 (2004), the Appellate Division found that the claimant was not exposed to a special hazard when, while on his way to work he fell on ice on a public street walking from the parking garage where he and other employees routinely parked. The Court found that the danger existed to any passerby traveling along the street in that location. (Harris at 797). Similarly, in Matter of Fiero v. New York City Dept. of Housing Preserv. & Dev., 34 AD3d 911 (2006), the claimant's injuries and resultant death after being struck by a truck on his way to work while crossing a public highway were not compensable. The Court held that "risk of being struck by vehicular traffic in this location was shared by the public in general and was not specific to [the] place of employment." (id. at 912).
In the instant case, the record does not contain any evidence to suggest that the accident at issue was related to a special hazard connected to the decedent's employment. The decedent was struck by a car while crossing a public highway that was not connected to the only means of ingress and egress to her place of employment. Here, the danger faced by the decedent was unlike the special hazard faced by the claimant in Husted, and more like the hazard faced by the claimants in Harris and Fiero – one shared by the general public.
There is also no evidence in this case to demonstrate that a nexus between the accident and the employment exists. In Thatcher v Crouse-Irving Memorial Hosp., 253 AD2d 990 (1998), the Court found the claimant's injuries compensable when she slipped and fell in a parking lot en route to her job. The basis of the Court's finding was that the employer "affirmatively encouraged" employees to park in a garage that was internally connected to the employer's premises (id. at 991). Here, however, the decedent was free to choose where to park. The employer did not make arrangements for its employees to park in the bank lot nor did it encourage use of the bank lot.
Based upon a review of the record and the preponderance of the credible evidence, the Full Board finds that the decedent's death did not arise out of or in the course of her employment.
Accordingly, the WCLJ decision filed on March 8, 2011, is AFFIRMED. This claim is disallowed.