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Workers' Compensation Board

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Case # G1224143
Date of Accident: 08/29/2014
District Office: NYC
Employer: Coney Island Hospital
Carrier: Health & Hospitals Corp. CNY
Carrier ID No.: W843502
Carrier Case No.: 08191511231
Date of Filing of Decision: 09/06/2016
Claimant's Attorney: Oliver C. Minott Law Offices
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 19, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on February 12, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's August 29, 2014, accident arose out of and in the course of employment.

The Workers' Compensation Law Judge (WCLJ) found that the accident arose out of and in the course of claimant's employment and established the claim.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member would disallow the claim because there was insufficient evidence that the employer owned and maintained the sidewalk and parking lot where the claimant's accident occurred.

The self-insured employer (SIE) filed an application for Mandatory Full Board Review on March 11, 2016.

The claimant filed a rebuttal on March 23, 2016.

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

FACTS

This is a controverted claim for left knee and left foot injuries. The record was developed by way of the lay testimony of the claimant and an employer's witness.

The claimant testified that she was employed at the SIE's hospital as a certified nursing assistant. The claimant had an accident at 3:55 P.M. on August 29, 2014, after her shift had ended. While she was walking in the hospital's parking lot towards the bus stop, the claimant stepped onto the sidewalk, fell and injured her left foot. She took the bus home after the accident, before realizing that she needed emergency medical attention.

On cross-examination, the claimant testified that she stepped up to the sidewalk from the parking lot because a car was coming, and her left foot gave out as she stepped onto the sidewalk. The claimant described the area where she fell in as the hospital's entrance. The claimant testified that SIE's employees regularly walked through the parking lot when entering and leaving the hospital. The claimant testified that the location where she fell is part of the hospital's grounds.

The employer witness testified that she has been employed by the SIE for thirty years. The witness testified that she learned about the claimant's accident from the nursing supervisor. The witness testified that the claimant finished work on August 29, 2014, signed out and then tripped in the hospital's parking lot. The witness testified that the SIE's parking lot is operated by a private vendor, and it is open to the general public, including the employees that pay to use it.

On cross-examination, the employer witness admitted that the sidewalk the claimant fell on was attached to hospital's building, and she had no knowledge regarding who controls it. The employer witness testified that the claimant has worked for the SIE for ten years, and she was considered a very reliable employee. The employer witness also admitted that a lot of employees walk through this parking lot.

The Board file contains a Supervisor's Report of Accident in which the supervisor reported that the sidewalk the claimant fell on was not level and was broken in parts. The report also indicated that the claimant stepped on a broken, uneven part of the sidewalk before she fell. The Board file also contains a witness report dated September 3, 2014. The witness reported that she saw the claimant fall while stepping onto the sidewalk in the parking lot on August 29, 2014. The photos referenced in the claimant's application and during the hearing on April 20, 2015, show a sidewalk that appears to be in a deteriorated condition connecting to a large building.

By a decision filed April 23, 2015, the WCLJ established the claim for the left foot and knee, set the average weekly wage at $652.48 without prejudice, and made awards. The SIE requested administrative review of that decision.

LEGAL ANALYSIS

"The well-established rule is that 'employees are not deemed to be within the scope of their employment while' commuting, since 'the risks inherent in traveling to and from work relate to the employment only in the most marginal sense' (Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322 [1978] [additional citations omitted]). An injury which occurs on a public sidewalk while an employee is travelling to or from work is not compensable unless one of the exceptions to the general commuting rule applies (Matter of Davenport v N.Y. State Senate, 283 AD2d 880 [2001]).

"Absent some physical connection with the employer's premises, an accident experienced by an employee on the way to work is generally not compensable. But when the injuries suffered by an employee away from the place of employment are part and parcel of the entrance thereto, they are compensable if there is a causal relation, a distinct 'arising out of', between the employment and the accident. Application of the latter principle has prompted judicial confirmation of previous Board findings of work-related injuries in instances where the employee was proceeding to work along the normal route which the employer knew or should have known had to be traveled in order to gain entrance to the work site" (Matter of Marquette v New York Tel. Co., 122 AD2d 479 [1986] [internal quotation marks and citations omitted]).

However, "[a] parking lot maintained by the employer constitutes precincts of employment, and the course of employment encompasses a reasonable amount of time for the employee to enter his place of employment prior to the beginning of his shift" (Matter of Lawton v Eastman Kodak Co., 206 AD2d 813 [1994] [citations omitted]). Thus, an employee who was injured while crossing the street between the employer's office and a parking lot that constitutes precincts of employment was "injured while engaging in an act which was part of the entrance into the employment premises and ... the injury therefore arose out of and in the course of ... employment" (Matter of Stokes v Kaiser Permanente, 198 AD2d 639 [1993], lv denied sub nom. Matter of Stokes, 84 NY2d 807 [1994]).

In the present matter, the claimant fell and was injured stepping from a parking lot onto a sidewalk which was physically connected to the hospital building where she worked. Claimant credibly testified that the parking lot was part of the hospital grounds. The sidewalk was part of the hospital grounds, rather than a public sidewalk, and was within the precincts of claimant's employment.

The testimony of the employer's witness that the parking lot is run by an outside vendor and is open to the public, for a fee, does not require a different result. That the employer contracted with a vendor to operate a paid parking lot on the hospital's grounds does not remove the lot and the appurtenant sidewalk from the precincts of the claimant's employment.

Therefore, the Full Board finds that the preponderance of the evidence supports establishing this case for work-related injuries to the left foot and left knee.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed April 23, 2015, is AFFIRMED. No further action is planned by the Board at this time.