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Case # G1291644
Date of Accident: 02/04/2015
District Office: NYC
Employer: Department of Education
Carrier: Board of Education CNY
Carrier ID No.: W842009
Carrier Case No.: 00401520503
Date of Filing of Decision: 01/25/2017
Claimant's Attorney: Pasternack Tilker Ziegler Walsh Stanton & Romano LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on December 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 31, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant sustained an accidental injury arising out of and in the course of her employment.

The Workers' Compensation Law Judge (WCLJ) established the claim for injuries to claimant's left arm and right knee.

The Board Panel majority reversed the WCLJ decision and disallowed the claim, finding that claimant's accident did not arise out of and in the course of her employment.

The dissenting Board Panel member would affirm the WCLJ's decision.

The claimant filed an application for Mandatory Full Board Review on April 29, 2016.

The self-insured employer (SIE) did not file a timely rebuttal.

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

FACTS

This is a controverted claim for injuries that claimant sustained on February 4, 2015, when she tripped and fell while walking from the public school where she worked to her car.

The claimant testified at a hearing on June 18, 2015, that she was employed as a paraprofessional by the New York City Department of Education. At 2:20 p.m. on February 4, 2015, right after the students had been dismissed, she left the building where she worked, turned right and walked down the sidewalk towards Avenue Z to get to her car. According to claimant, while walking down the sidewalk, "I just all of a sudden - my head - when you are going to fall and I fell and I landed on my left" arm (transcript, 6/18/15 hearing, p. 4). She was approximately 25 feet from the door of the building when she fell. Claimant had no idea what caused her to fall. There was scaffolding set up outside of the building when the accident occurred. When asked on direct examination whether the sidewalk "is maintained by the City of New York or maintained by the school itself," claimant responded, "I think by the school" (p. 9-10). Her car was parked on a public street.

After listening to the claimant's testimony and summations by the parties, the WCLJ established the claim for the left arm and right knee, and made awards. The WCLJ found that claimant's accident occurred in the "gray area" where the risks of street travel merge with the risks attendant with employment, and her injuries therefore arose out of and in the course of her employment (see Matter of Husted v Seneca Steel Serv., 41 NY2d 140 [1976]).

The SIE requested administrative review of the WCLJs' decision, contending that because claimant's injury did not result from any "special hazard" connected to her employment, the "gray area" exception to the general commuting rule established in Husted was inapplicable.

In her rebuttal, claimant asked that the WCLJ decision be affirmed.

LEGAL ANALYSIS

In her application for Mandatory Full Board Review, claimant argues that the sidewalk where she was injured "is maintained by the City and in addition was covered in scaffold creating a special hazard that creates a risk of employment when all of the schools employees have to walk through it to enter and exit the building." Claimant contends that she is entitled to the presumption created by Workers' Compensation Law (WCL) § 21(1) that her injury "arose out of the course of [her] employment."

Gray Area - Husted

"'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 [1987], lv denied 70 NY2d 608 [1987])" (Matter of Harris v New York State Off. of Gen. Servs., 13 AD3d 796 [2004] [additional citation omitted]). However, where "the accident [occurs] near claimant's place of employment, [the] claim falls within '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] [internal quotation marks and citation omitted]; accord Matter of McLeod v Ground Handling, Inc., 92 AD3d 1074 [2012])" (Matter of Trotman v New York State Cts., 117 AD3d 1164 [2014]). "'[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)" (Harris, 13 AD3d 796 [2004] [additional citations omitted]).

When an accident occurs on a public street in "close proximity to the employer's premises [but] no evidence was provided to show that the street was closed to the public or otherwise controlled by the employer, that workers were encouraged to use it or that it existed solely to provide access to [those premises, and when] no evidence was presented to suggest that the accident in question was related to a special hazard connected to claimant's employment as opposed to a risk shared by the general public [the] evidence supports [a] conclusion that claimant did not sustain an accidental injury arising out and in the course of her employment" (Matter of Littles v New York State Dept. of Corrections, 61 AD3d 1266 [2009]).

Here, claimant testified that she had no idea what caused her to fall and there is no evidence that the scaffolding outside the school caused her fall. Therefore, because there is no evidence that the accident resulted from a "special hazard" connected with claimant's employment, the exception to the general commuting rule established in Husted is inapplicable.

Employer's Premises

Injuries which occur on the employer's premises while a claimant is going to or coming from work are generally considered to have arisen out of and in the course of claimant's employment (Matter of Arana v Hillside Manor-Nursing Ctr., 251 AD2d 715 [1998]). The employer's premises include an adjacent sidewalk when there is evidence "establishing the employer's control of the subject sidewalk" (Matter of Mercado v Schenectady City School Dist., 24 A.D.3d 846 [2005]).

Here, when asked on direct examination whether the sidewalk "is maintained by the City of New York or maintained by the school itself," claimant responded, "I think by the school" (p. 9-10). No follow up questions were asked regarding the basis of claimant's knowledge of the entity responsible for maintaining the sidewalk. Claimant's equivocal response, without more, is insufficient to find that employer was responsible for maintaining the sidewalk, or was otherwise in control of the sidewalk such that the sidewalk could be considered part of the employer's premises.

Therefore, the preponderance of the evidence in the record supports a finding that claimant's accidental injury did not arise out of and in the course of her employment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed June 29, 2015, is REVERSED and this claim is disallowed. No further action is planned by the Board at this time.