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FALL ON SIDEWALK NEAR PLACE OF EMPLOYMENT NOT COMPENSABLE, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department determined claimant was not entitled to workers’ compensation benefits stemming from a fall on a sidewalk near her plaice of employment. The relevant criteria were explained:

As a general rule, “accidents that occur in public areas away from the workplace and outside of work hours are not compensable” …  and, thus, “injuries sustained during travel to and from the place of employment” are not compensable… . Where, as here, the accident occurred near the claimant’s place of employment, “there develops 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” … . Under these circumstances, injuries will be compensable only if there was “(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” … , permitting the conclusion that “the accident happened as an incident and risk of employment” … . “Notably, the Board in the exercise of its fact-finding powers has the authority to make a discretionary determination of the risks attendant to employment under the particular circumstances of a case”… .

Here, there is no evidence that there was any special hazard on the uneven sidewalk where claimant fell, which was open to and used by the public, as the danger “existed to any passerby traveling along the street in that location” … . The sidewalk was near the privately-owned building where claimant worked, but the building housed many businesses and a restaurant and was open to the public, and there was “no showing that it was otherwise controlled by the employer, that workers were encouraged to use it or that it existed solely to provide access to [her] workplace” … . As substantial evidence supports the Board’s determination that claimant’s accident did not occur in the course of her employment, it will not be disturbed.  Matter of Brennan v New York State Dept. of Health, 2018 NY Slip Op 01974, Third Dept 3-22-18

WORKERS’S COMPENSATION LAW (FALL ON SIDEWALK NEAR PLACE OF EMPLOYMENT NOT COMPENSABLE, CRITERIA EXPLAINED (THIRD DEPT))

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