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Case # G0445026
Date of Accident: 08/20/2010
District Office: Hauppauge
Employer: EOC of Suffolk
Carrier: National Union Fire Ins. Co.
Carrier ID No.: W150007
Carrier Case No.: 709-976980
Date of Filing of Decision: 10/02/2013
Claimant's Attorney: Miller & Caggiano LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on September 6, 2012.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether claimant was working on the date of her alleged accident;
  2. whether the carrier waived as a defense to the claim that claimant had left the employer's premises, and was no longer in the course of her employment, when the injury occurred; and
  3. whether the injury occurred in the course of claimant's employment.

The Workers' Compensation Law Judge (WCLJ) found that the claimant sustained a work-related injury to her left hip, left knee and left ankle.

The Board Panel majority affirmed the WCLJ's decision. The majority found that while the employer contends that the claimant was not working on the date of the accident, no documentary evidence was produced to support this contention or to refute the testimony of the claimant that she was working on the day that she was injured. The Board Panel majority also found that the carrier waived any defense that the injury did not occur on the employer's premises because such defense was not raised until after the WCLJ issued her ruling regarding the compensability of the claim and after the case was established.

The dissenting Board Panel member found that the question of the compensability of the instant claim should be held in abeyance pending further development of the record on the issue of whether the employer owns or maintains the parking lot where the claimant allegedly fell, and the production of evidence by the employer.

On September 26, 2012, the carrier filed an application for Mandatory Full Board Review, arguing that the claimant did not suffer injuries as the result of an accident arising out of and in the course of her employment on August 20, 2010. Specifically, the carrier argued that the claimant was not working on the date of the alleged accident, and that even if the accident had occurred as described by the claimant, the description of the incident would not constitute a work-related accident as it happened after work hours while the claimant was attempting to enter her vehicle in a public parking lot.

On October 24, 2012, the claimant filed a rebuttal, arguing that the WCLJ's finding that the claimant was working on August 20, 2010, should be affirmed as the carrier failed to present substantial evidence to rebut the contention that the claimant was indeed working on the date of the accident. In addition, the claimant argued that the carrier waived any objection that the claimant's injury did not occur in the course of employment as this objection to the establishment of this case was not raised until after the WCLJ issued her ruling. The claimant further argued that the parking lot wherein the claimant was injured is an extension of the employer's premises.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This is a controverted claim for injuries to the claimant's left hip, left knee and left ankle resulting from an alleged work-related incident that occurred while claimant was getting into her vehicle after work on August 20, 2010.

The claimant has a previously established claim for an accidental injury to her right wrist, left small finger, and right shoulder that occurred on August 11, 2010 (WCB # G0236969). The record contains a copy of a termination notice dated August 25, 2010, that indicates that the claimant's employment was terminated by the employer on August 25, 2010, for failure to notify her supervisor of time off.

In a C-3 (Employee Claim), dated March 14, 2011, the claimant stated that she was a case manager for the employer, and that after leaving work on August 20, 2010, she fell backwards onto the sidewalk while attempting to enter her vehicle, causing her to injure her left side, hip, knee, ankle and shoulder.

At a hearing on February 2, 2012, the claimant testified that on August 20, 2010, at approximately 5:30pm, she ended her workday, locked up the office and walked through the parking lot to her truck. The claimant further testified that when she reached her vehicle, she opened the door and attempted to get in, but that as she was attempting to enter her vehicle she fell backwards onto her left side hitting her hip on the curb. The claimant indicated that she also twisted her left leg and ankle. The claimant testified that the office building where she worked is located on a cul de sac with two other businesses, and that at the time of the accident she was parked in a parking lot located about 100 feet from the office building. The claimant further testified that the parking lot is used by all three of the adjacent businesses, that the lot is open to the public, and that the parking lot is not attached to the building. The claimant indicated that she has carpal tunnel syndrome and that she fell because she was unable to grip the steering wheel while getting into her truck. The claimant testified that she did not seek medical care on the date of the accident, and that she informed the employer of the incident on August 21, 2010, via a telephone message at the main office. The claimant further testified that on August 23, 2010, she informed her employer that the incident on August 20, 2010, and the injuries that she sustained, were work-related. The claimant stated that she did not return to work after the August 20, 2010 accident. The claimant testified that she is no longer working for the employer because she was terminated on August 23, 2010, for taking excessive sick leave. While the claimant acknowledged that she had a prior work-related accident on August 11, 2010, the claimant denies that she never returned to work after August 11, 2010. The claimant specifically testified that after August 11, 2010, she missed a day of work to attend a doctor's appointment on August 12, 2010, but that she returned to work on August 13, 2010, and that she worked every day through, and including, August 20, 2010. The claimant further testified that there was a sheet that she signed in and out on each day that she worked. The claimant acknowledged that she had been disciplined prior to the August 20, 2010, incident, but stated that the situation had been resolved.

On cross-examination, the claimant admitted that she did not have a pay stub for the week following August 11, 2012. The claimant stated that she had not received a paycheck for any work performed after August 11, 2012.

At the hearing on February 2, 2012, a claimant's friend testified that on August 20, 2010, she was waiting in the parking lot to meet the claimant after work in order to go out to eat. The witness further testified that she saw the claimant come out of the office and begin to get into her truck. According to the witness, the next thing that she saw was the claimant lying on the sidewalk almost underneath her vehicle. The witness stated that the claimant told her that she hurt her hip. The witness estimated that the parking lot is about 600 feet from the office building, and stated that the parking lot is used by the three businesses located on the cul de sac adjacent to the parking lot. The witness indicated that she had worked for the same employer as the claimant, but that she had quit working for the employer in 2002.

A former co-worker testified at the hearing on February 2, 2012, that she worked in the same facility as the claimant, and that they were both at work on August 20, 2010. The witness further testified that she recalled faxing a payroll sheet for the claimant for the period from August 11, 2010 to August 20, 2010. The witness testified that the claimant called in on August 23, 2010, and said that she hurt her wrist. The WCLJ asked the witness if she was sure she wasn't confusing the alleged phone call from the claimant on August 23, 2010, with a phone call on August 12, 2010, as the claimant injured her wrist on August 11, not August 20. The witness responded "no," because she specifically remembered the claimant telling her that she fell out of her vehicle (Hearing Minutes 2/2/12, pg. 55). On cross-examination, the witness acknowledged that she had been terminated by the employer in September of 2010. The witness alleged that she had not been paid for her last week of work. The witness acknowledged that she filed a complaint against the employer for the disputed wages, that the complaint is still pending, and that she is not currently working.

At a hearing on March 1, 2012, the employer's Chief Financial Officer (CFO) testified that the claimant had a work-related injury to her wrist on August 11, 2010, and that the payroll documentation indicates that the claimant's last day of work was August 11, 2010. The witness testified that the claimant's immediate supervisor no longer works for the employer, but that documentation in the employer's records from the supervisor indicate that the claimant was terminated on August 25, 2010, for failure to return to work after August 11, 2010. According to the witness, at each work site, an employee handles the payroll by gathering the time sheets from the employees and submitting them to the administrative office where the actual payroll is processed. The witness testified that the employer maintains a biweekly payroll summary sheet signed by the supervisor of each work site; however, the witness did not have the summary sheet for Amityville for August 10, 2010, to August 25, 2010, at the hearing because she was not aware that it was needed. The witness stated there was no time sheet for the claimant after August 11, 2010, because the claimant didn't work after August 11, 2010.

At the conclusion of the hearing on March 1, 2012, the WCLJ established the case for work-related injury to the claimant's left hip, left knee and left ankle. The representative for the carrier noted an exception to both the finding that the claimant was working for the employer on August 20, 2010, and the finding that the claimant's injuries arose from a work-related accident. The representative for the carrier noted that prior testimony indicated that the claimant was injured after work while attempting to get into her car in a public parking lot, such that any dangers would have been present to the general public and not exclusively to the claimant.

In a decision filed on March 6, 2012, the WCLJ memorialized her finding that the claimant sustained a work-related injury to her left hip, left knee and left ankle.

LEGAL ANALYSIS

To be compensable under the Workers' Compensation Law, an accident must both arise out of and in the course of employment (Matter of Rosen v First Manhattan Bank, 202 AD2d 864 [1994], affd 84 NY2d 856 [1994]). Furthermore, pursuant to Workers' Compensation Law § 21, "accidents arising 'in the course of' one's employment are presumed to have arisen 'out of' such employment, and such a presumption can only be rebutted by substantial evidence to the contrary" (Matter of Van Horn v Red Hook Central School, 75 AD2d 699 [1980]).

Whether Claimant was Working on the Date of Accident

In the present case, the claimant testified that she was at work on August 20, 2010, and that after her work day had ended she injured herself while attempting to enter her car which was located in the parking lot directly adjacent to the office building at which she worked. Two witnesses, a former co-worker and the claimant's friend, corroborated the claimant's testimony that she was at work on August 20, 2010. The claimant's friend further testified that she was waiting for the claimant in the parking lot and that she witnessed the claimant fall while attempting to get into her truck. The employer's CFO testified that the claimant had not worked for the employer subsequent to August 11, 2010. However, the CFO acknowledged that she had no first-hand knowledge regarding the claimant's attendance at work on the date of the alleged accident, and that her belief that the claimant was not at work on the date in question is based upon a termination letter located in the claimant's personnel file, the company's payroll documents and attendance records. In addition, the carrier failed to produce any payroll documents or attendance records in support of its contention that the claimant did not work for the employer on August 20, 2010, despite having access to such documents and having ample opportunity to produce such documents. Although the termination letter was produced, on its own, it is insufficient to establish that the claimant was not working on August 20, 2010, as the letter is dated August 25, 2010, and merely states that the claimant's employment is being terminated for "failure to notify her supervisor of time off (sick-days)." The termination letter does not provide the alleged dates on which the claimant was absent from work without providing notice.

Remand for the production of the unproduced payroll documents and attendance records is not warranted. The carrier waived the right to introduce such evidence by its failure to attach the documentation to its pre-hearing conference statement. This case was transferred to the special part for expedited hearings pursuant to WCL 25(3)(d) and 12 NYCRR 300.34 and 300.38. Section 300.38(f)(3) provides that "each party shall attach to the pre-hearing conference statement any and all reports, forms and documents that the party intends to use at the hearing(s), ... including ... forms detailing ... the claimant's work status." Section 300.38(4) provides that "failure to ... include a copy of any document ... with the pre-hearing conference statement ... shall constitute a waiver of the right to ... introduce such document in the case." The carrier has therefore waived the right to submit any further documentation in support of its contention that the claimant was not working on August 20, 2010. In addition, the hearing had already been adjourned for the express purpose of providing the employer the opportunity to produce such documentation.

Accordingly, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant was working for the employer on August 20, 2010.

Waiver of Defense

The Board Panel majority found that the carrier waived any defense that the injury did not occur on the employer's premises because such defense was not raised. The carrier in its Pre-Hearing Conference Statement dated December 23, 2011, raised all C-7 defenses, including, specifically, "accident arising out of and in the course of employment." As such the carrier raised the issue of "accident arising out of and in the course of employment" before the WCLJ. In support of its contention that the claimant did not suffer an accident arising out of and in the course of claimant's employment, the carrier focused on the argument that the claimant was not working on the date of the alleged accident. However, the carrier's argument that the alleged incident does not constitute a work-related accident because it happened after work hours while the claimant was attempting to enter her vehicle in a public parking lot is merely another argument in support of the carrier's contention that the claimant did not suffer an accident arising out of and in the course of claimant's employment, not a separate issue. At the hearing on February 2, 2012, the WCLJ specifically questioned the claimant and her friend about the location and intended use of the parking lot. In addition, at the conclusion of the hearing on February 2, 2012, the carrier noted on the record that it maintains all of its C-7 defenses with reference to this claim, including accident arising out of and in the course of employment. Furthermore, at the conclusion of the hearing on March 1, 2012, the carrier noted on the record that it takes exception to both the finding that the claimant was working on August 20, 2012, and the finding that the alleged incident constitutes a work-related accident as the alleged incident occurred in a public parking lot. Therefore, the carrier properly raised and preserved for review the issue of accident arising out of and in the course of employment; it is clear from the WCLJ's questioning of witnesses regarding the location and use of the parking lot that the WCLJ was aware that the location of the accident was a factor relevant to such issue; and the record establishes that the carrier repeatedly raised the issue of accident arising out of and in the course of employment, including specifically referencing the location of the accident.

Accordingly, the Full Board will consider the carrier's argument that the alleged accident did not arise out of and in the course of the claimant's employment because it occurred in a public parking lot.

Course of Employment - Commuting

While the dissenting Board Panel member would return the matter to the hearing calendar for the employer to produce a knowledgeable witness to testify as to whether the employer owns or maintains the parking lot where the claimant was injured, the burden of proof lies with the claimant to establish that the parking lot is an extension of the employer's premises. Furthermore, remand is not warranted as the record contains sufficient testimony and arguments regarding the location and use of the parking lot. In addition, the claimant had full notice that the carrier was contesting that the accident arose out of and in the course of the claimant's employment, and the claimant has had ample opportunity to produce evidence supporting her contention that the parking lot is an extension of the employer's premises.

If an accident occurred on an employer's premises, the Board can reasonably infer that the resulting injuries occurred in the course of employment (Matter of Husted v Seneca Steel Serv., Inc., 50 AD2d 76 [1975], aff'd 41 NY2d 140 [1976], citing Matter of Ott v Gem Elec. Mfg. Co., 44 AD2d 331 [1974]). However, an area outside of the employer's building, such as a sidewalk or a parking lot, is not considered part of the employer's premises unless it is owned or maintained by the employer for use by its employees, even if the area is designated for employee parking (see, e.g., Matter of Lawton v Eastman Kodak Co., 206 AD2d 813 [1994]; Matter of Borelli v New York Tel. Co., 93 AD2d 940 [1983]). "[A] parking lot maintained by the employer constitutes precincts of employment" (Matter of Lawton v Eastman Kodak Co., 206 AD2d 813 [1994]). When that parking lot is "owned and maintained by claimant's employer exclusively for its employees," the risks posed in that lot are not risks shared by the public generally (id.).

In the present case, the claimant testified during a hearing on February 2, 2010, that the parking lot is used by all three of the adjacent businesses, that the lot is open to the public, and that the parking lot is not attached to the building where she worked. The claimant's friend corroborated her testimony. Based on the claimant's own testimony, it is clear that the parking lot was not owned and maintained by claimant's employer exclusively for its employees use. In addition, because the lot is open to the public, the risks posed in the lot are risks shared by the public generally.

Accordingly, the Full Board finds that the preponderance of the evidence supports a finding that the parking lot is not an extension of the employer's premises, and as such the accident did not arise out of and in the course of the claimant's employment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on March 6, 2012, is REVERSED. No further action is planned by the Board at this time.