For this week’s blog post, I decided to pull a case from the archives in honor of our Day of Independence.  In honor of the upcoming holiday, and in hopes that it will be a guiding principle throughout your Fourth of July events and the year to come, we review the case of <u>East Village</u>, 2014 NY Wrk. Comp. LEXIS 3639, 061 7908 (Carrier ID No. – W207633).

In <u>East Village</u>, the claimant filed a C-3 in August 2012 which alleged that he fractured his ankle on July 4, 2012, while working as a building superintendent.  The claimant further indicated that he was supervising tenants and guests when he fell down a staircase.

The carrier fully controverted the claim alleging no accident arising out of and in the course of employment and that the claimant willfully intended to bring about the injury pursuant to WCL § 10.  The carrier based its WCL § 10 defense upon the fact that prior to the altercation which resulted in the injury, the claimant’s dog had been struck by a firework that one tenant threw off the roof.

The claimant and his fiancée testified on the claimant’s behalf.  However, the claimant’s supervisor/employer failed to appear at the hearing, advising that he did not feel it important enough to show up to testify.  Based upon the employer’s failure to appear, the judge did find a negative inference.

The claimant’s testimony, which was bolstered by his fiancée, supplied the following facts to the claimant’s case: (1) that the claimant contacted his supervisor to advise that there were tenants and guests throwing fireworks off the roof and that the claimant’s supervisor instructed the claimant to ignore the events taking place on the roof and clean up the mess the next day; (2) that the claimant’s dog had been struck by a firework thrown from the roof and that was when the claimant went up to the roof and instructed the tenants and guests to leave the roof; (3) those individuals did clear the roof as requested and the claimant went back downstairs to get a garbage bag so he could clean the roof area; (4) on his way back to the roof to clean, he encountered four people which were guests of a tenant; and, (5) when he told the individuals he was going to call the police, one man knocked the cell phone out of the claimant’s hand and the claimant attempted to physically restrain the man and both fell down the stairs resulting in the claimant’s injury.

In analyzing the facts of the claim, the Board did note that under “Workers’ Compensation Law an accidental injury must have arisen out of and in the course of employment.”  The presumption was also addressed by the Board that accidents which arise in the course of employment are presumed to arise out of such accident and that this presumption is rebuttable only by substantial evidence to the contrary.  Finally, the Board also analyzed WCL § 21(1) noting that an assault that occurs at work is presumed to arise out of employment unless there is substantial evidence that it was “motivated by purely personal animosity.” [<em>Internal citations omitted</em>].

The Board ultimately determined that the claim was compensable.  In reaching its Decision, the Board found that the claimant did concede that one of the individuals on the roof threw a firework that struck his dog, but that the assault which occurred on the stairs happened not due to the confrontation over the dog incident, but after the claimant told the people on the roof he was going to call the police.

Using these facts, the Board found the claim compensable based upon the nexus between the claimant’s work activities as the superintendent of the property and the assault occurring as he was in the process of going to clean the roof in fulfilment of those work activities.

Do you think the Board was correct?

As a carrier’s representative, stressing the importance of an employer testimony is always a top priority so that the witness fully appreciates the significance of their presence at the Workers’ Compensation hearing.  Do you think the Decision would have been different if the employer had testified?

Hope you have a safe and happy holiday and that this holiday your hot dogs are <em>Ball Parks</em>.

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Happy Fourth of July from The Law Offices of Melissa A. Day, PLLC!