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Case # G1290526
Date of Accident: 01/19/2015
District Office: NYC
Employer: McGuiness Management
Carrier: Hereford Insurance Company
Carrier ID No.: W106884
Carrier Case No.: OR350141
Date of Filing of Decision: 10/04/2017
Claimant's Attorney: Shulman & Hill PLLC
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed January 10, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's injuries arose out of and during the course of his employment.

In a decision filed on May 17, 2016, the Workers' Compensation Law Judge (WCLJ) established the case for work-related injuries to the claimant's neck, back, head and right shoulder, based upon an accident that occurred on January 19, 2015.

The Board Panel majority reversed the WCLJ decision and disallowed the claim on the grounds that the claimant's injuries arose out of an assault, and the preponderance of the evidence indicated that the claimant was the initial aggressor, his actions were willful and deliberate, and there was no nexus between the assault and his employment.

The dissenting Board Panel member would have affirmed the WCLJ decision and established the claim.

The claimant filed an application for Mandatory Full Board Review on February 9, 2017, arguing that the opinion of the dissenting Board Panel member should be adopted by the Full Board and his claim should be established.

The carrier filed a rebuttal on March 2, 2017, contending that the majority's opinion should be affirmed by the Full Board because the claimant's injuries did not arise from a work-related accident.

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

FACTS

In a C-3 (Employee Claim) filed February 11, 2015, claimant, a taxi driver, alleged that he sustained work-related injuries to his neck, back and head when he was assaulted on January 19, 2015.

The electronic case folder contains a police report of a motor vehicle accident, prepared by the Port Authority of New York and New Jersey police (see MV-104 [1-19-15], pp. 2-3). The report identified the claimant as the driver of Vehicle 1 and a tow truck operator as the driver of Vehicle 2. The report describes the January 19, 2015, incident as follows: "At [a towing parking lot at 9:15 p.m.], the driver of Vehicle 1 drove into the driver's side of Vehicle 2 multiple times. When attempting to flee the scene[,] the driver of Vehicle 1 drove around the front of Vehicle 2 and struck the driver of Vehicle 2 twice in the right leg" (id. at p. 2). The report also stated that the "driver of Vehicle 1 drove into the back passenger's side [and] broke light of Vehicle 3" (id. at p. 3).

In a Notice of Decision filed on June 22, 2015, the WCLJ found that prima facie medical evidence existed for injuries to the neck, back, head and left shoulder and continued the case for further development of the record including medical and lay testimony.

During the hearing of July 27, 2015, the claimant testified that in January 2015, he was working for the employer as a taxicab driver (see Hearing Transcript, 7/27/15, p. 3). The claimant described the incident of January 19, 2015, as follows:

I was working - driving that night my regular shift and I pickup a passenger from the Bronx to JFK. Once I drop the passenger at JFK I was helping the passenger and then my car was towed from the terminal. When I went to the tow pound to get my car back the tow truck driver took his car and then while I was sitting inside he hit my car multiple times from the driver's side, the backside and the passenger side.

(Id. at p. 3-4). The claimant testified that he picked up the passenger in the Bronx around 8:15 or 8:30 p.m. and that the incident at the impound lot occurred around 9:00 p.m. (see id. at pp. 19-20). He testified that the tow truck driver hit his car more than three times, hitting the driver's side, the back, and the passenger's side (see id. at pp. 4-5). The claimant also stated that his car was parked at the time and he was inside of it when this occurred (see id. at p. 4).

When asked whether there was an altercation that preceded this incident, the claimant stated:

No, he asked me to open my car door for him. I refused to open my car for him - my door. I told him I'm never opening my car door for you. So if you have anything you want to tell me come and talk to me, but I'm not opening my car for you. I guess he got angry and he - he looks like he was drunk or something I could tell 100 percent and he just went off. I don't know what happened.

(Id. at pp. 5-6). He admitted that, at the time of the altercation, he had not yet paid the fee to retrieve his car (see id. at p. 6). The claimant explained that it was cold outside, so he went into his taxi to get his coat, which is when the tow truck driver tried to open the driver's door (see id.). The claimant refused to open his door, and that is when the encounter happened (see id.). He stated that as a result of the incident, he injured his lower back, left shoulder, neck and head (see id. at p. 7). The claimant notified his supervisor about this incident the next day and went to the hospital for treatment two days later (see id.). He missed about nine weeks of work after this incident and returned to work full time on March 30, 2015, as a self-employed driver (see id. at p. 8).

Upon further questioning from the WCLJ, the claimant confirmed that immediately after the incident, the police arrived and he was arrested (see id.). The police informed the claimant that he was being arrested on the grounds that the claimant hit the tow truck driver's car multiple times (see id. at p. 9). The claimant stated: "I told the police, you can see my car. The front bumper nothing, not even a scratch . . . And from the police report they told that I hit him with my front bumper multiple times his tow truck" (id.). The claimant explained that both the tow truck driver and the police worked for the Port Authority, "[s]o when the police comes they sided with the tow truck even though everything they said on the police report is basically false . . . And I am still going to court with that. Trying to clear that" (id.). The claimant also denied that his car was on or that he hit a third vehicle, as documented in the police report (see id. at pp. 10-11).

On cross-examination, the claimant stated that his criminal matter was still pending, and he had refused a plea deal to settle the case for approximately $150.00 (see id. at p. 12). He stated that he was unwilling to accept a plea deal, "because I know I didn't do anything wrong" (id.). He conceded that the police report stated that he was attempting to take his vehicle from the impound lot without paying his fine (see id. at p. 13). He explained that he was inside of his car before paying the fine because it was cold outside, so he entered his car to retrieve his jacket and sat down in the driver's seat because it was "very cold so I needed to at least get somewhere warm" (id. at pp. 13-14). The claimant confirmed that he did not turn his car on until after the tow driver began hitting his vehicle, at which point he drove his car into an area of the impound lot where there was more light, beside an office building (see id. at pp. 14-15). He denied that he ever hit the tow truck driver's vehicle with his vehicle (see id. at p. 17). He spoke to an attorney about filing a civil action against the tow truck driver for hitting his car, but he was unable to do so while the criminal matter was pending (see id. at p. 21). The claimant further testified that his normal shift hours were 5 p.m. to 5 a.m. (see id. at p. 22).

Following the testimony, the WCLJ found that the carrier had waived its opportunity to submit an independent medical examination (IME) report and that it had waived its opportunity to produce a witness (see id. at p. 23). The carrier declined to proceed with medical depositions, as this case involved "primarily a legal issue" (id.). The WCLJ indicated that the case would be closed until the claimant's criminal matter was resolved in order to procure additional evidence (see id. at p. 24).

During the pendency of this claim, on November 16, 2015, the claimant's criminal charges were dismissed and the record sealed pursuant to Criminal Procedure Law ^sec 160.50 (see Certificate of Disposition [11-16-15], attach to RB-89.1).

At a hearing held on May 4, 2016, the parties gave summations and the WCLJ established the claim for work-related injuries to the neck, back, head, and right shoulder, based upon an accident that occurred on January 19, 2015 (see Hearing Transcript, 5/4/16, p. 10). The WCLJ made awards from January 20, 2015, to March 30, 2015, at the temporary total disability rate of $166.67 per week, and found no compensable lost time from March 30, 2015, to May 4, 2016 (see id. at p. 11). As a basis for these findings, the WCLJ opined:

We have an incident that arose having to do with this gentleman's taxi. The car was impounded . . . That bore upon his work duties. And then an altercation arose out of this incident. So it reasonably arose in and out of the course of employment.

(Id. at p. 10). These findings were memorialized in a WCLJ decision filed on May 17, 2016.

In an application filed on June 15, 2016, the carrier sought administrative review of the May 17, 2016, WCLJ decision. Therein, the carrier argued that the WCLJ decision should be reversed and the claim disallowed because the claimant's injuries were not sustained in or out of the course of his employment and were a direct result of his willful attempt to injure the tow truck driver. The carrier also asserted that the claimant's version of events should not be credited.

In rebuttal, the claimant contended that the WCLJ decision should be affirmed because he credibly testified to an accident that occurred on January 19, 2015, which arose in and out of the course of his employment. The claimant noted that, contrary to the carrier's argument that he was the initial aggressor, photographs from the time of the accident do not reveal any damage to the front of his car. "In fact," the claimant argued, "the photographs of [his] vehicle are consistent with [his] testimony that the tow truck driver drove into his vehicle, as the most damage done to the claimant's car is on the side of the vehicle..." Attached to the rebuttal are photographs of his taxi, which show extensive damage to the front and rear of the driver's side of his vehicle; specifically, the vehicle shows damage above the driver's side front wheel and behind and beside the driver's side rear wheel (see RB-89.1, pp. 7-18).

LEGAL ANALYSIS

"To be compensable, an injury must arise out of and in the course of employment (see [WCL] § 10) . . . [If] the injury occurred during the course of [a] claimant's employment, a presumption arises that it also 'arose out of' the scope of his employment, unless the presumption is successfully rebutted by substantial evidence to the contrary (Gutierrez v Courtyard by Marriott, 46 AD3d 1241; accord Matter of Camino v Chappaqua Transp., 19 AD3d 856 [2005]; see [WCL] § 21). 'Activities which are purely personal pursuits are not within the scope of employment and are not compensable under the Workers' Compensation Law, with the test being whether the activities are both reasonable and sufficiently work related under the circumstances' (Matter of Vogel v Anheuser-Busch, 265 AD2d 705 [1999] [citation omitted]; see Matter of Richardson v Fiedler Roofing, 67 NY2d 246 [1986]; Matter of Pagano v Anheuser Busch, 301 AD2d 977 [2003])" (Matter of Marotta v Town & Country Elec., Inc., 51 AD3d 1126 [2008]). The question of whether an activity constitutes a purely personal pursuit is one of fact for the Board to resolve (see Matter of Harris v Poughkeepsie Journal, 289 AD2d 640 [2001] [citation omitted]; Matter of Camino v Chappaqua Transp., 19 AD3d at 856).

In this case, the preponderance of the evidence indicates that the accident arose out of and in the course of the claimant's employment. The claimant testified that his regular work shift was 5 p.m. to 5 a.m. and the accident occurred around 9:00 p.m. when he was retrieving his taxi from an impound lot. According to the claimant, he had picked up a passenger in the Bronx around 8:15 or 8:30 p.m. to drive to JFK airport; upon arriving at the airport, the claimant left his taxi to help the passenger, and when the claimant returned, his taxi had been towed. Because the claimant had been in the course of his employment (transporting a passenger) shortly before the injury occurred, the accident occurred during his regular work shift, and the act of retrieving his taxi is reasonably related to his work as a taxi driver, the accident arose out of and in the course of his employment.

The fact that the claimant's injuries occurred during an assault does not change this result. Pursuant to WCL § 21(1), an assault that occurs in the course of a claimant's employment is "presumed to have arisen out of the employment, absent substantial evidence that the assault was motivated by purely personal animosity" (Matter of Rosen v First Manhattan Bank, 84 NY2d 856 [1994] [citation omitted]). An injury that is the result of workplace assault will be compensable so long as there is any nexus, however slender, between the motivation for the assault and the employment (Matter of Baker v Hudson Valley Nursing Home, 233 AD2d 608 [1996], lv denied 89 NY2d 813 [1997]).

Under Workers' Compensation Law (WCL) § 10(1), an employer is not liable for an injury that was caused by an injured employee's "willful intention" to cause injury or death to "himself or another." WCL § 21(3) provides a rebuttable presumption that "the injury was not occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another." Identification of the claimant as the initial aggressor in an altercation does not, in itself, justify disallowing a claim under WCL § 10(1) (Matter of Matias v Donmoor, Inc., 133 AD2d 998 [1987]). There must be proof that the claimant's actions were willful and deliberate, as opposed to impulsive (Matter of Bell v Utica Corp., 306 AD2d 604 [2003]). Also, the evidence must support a finding that there was no nexus between the assault and the employment (Matter of Seymour v Rivera Appliances Corp., 28 NY2d 406 [1971]).

Here, the claimant's uncontroverted testimony indicates that the assault occurred while he was retrieving his taxi from an impound lot shortly after dropping off a passenger at JFK airport. The assault was instigated because the claimant and the tow truck driver got into a dispute when the claimant attempted to get his taxi from the impound lot. Because the claimant's car would not have been impounded had it not been for the claimant dropping off a passenger at JFK airport, and the assault stemmed from a dispute involving an object essential to his employment - his taxi - a nexus exists between the assault and the claimant's injuries.

Even assuming that the claimant was the initial aggressor, as the carrier asserts, that fact is not dispositive. The Appellate Division has held that the carrier must present proof that the claimant's actions were willful and deliberate, as opposed to impulsive, in order to rebut the WCL § 21(3) presumption that the claimant did not willfully intend to bring about the injury (see Matter of Bell, 306 AD2d 604 [2003]). Here, however, the carrier presented no evidence to demonstrate that the claimant acted willfully and deliberately. The police report states that the claimant hit the tow truck multiple times and hit the tow truck driver in the leg twice, but the report does not demonstrate an intent to bring about an injury to himself or the tow truck driver, as opposed to an impulsive act while attempting to flee the impound lot. Moreover, the carrier failed to produce surveillance tapes, medical reports, or lay witnesses, such as the tow truck driver or the witness listed on the pre-hearing conference statement (PH-16.2.0 form), to rebut the claimant's version of events: that he entered his vehicle to get his coat and was hit multiple times by the tow truck driver.

Accordingly, the Full Board finds that the preponderance of the evidence in the record demonstrates that the claimant's injuries arose out of and in the course of his employment, and the carrier has failed to rebut the WCL § 21(3) presumption that the claimant did not willfully intend to bring about the injury.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 17, 2016, is AFFIRMED. No further action is planned by the Board at this time.