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PLAINTIFF SUED HER EMPLOYER IN NEGLIGENCE BASED UPON AN ALLEGED ASSAULT BY A COWORKER; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE INJURY WAS IN THE COURSE OF PLAINTIFF’S EMPLOYMENT; THE WORKERS’ COMPENSATION BOARD HAS PRIMARY JURISDICTION OVER THE DETERMINATION OF THE APPLICABILITY OF THE WORKERS’ COMPENSATION LAW; RATHER THAN DISMISSING THE NEGLIGENCE CAUSES OF ACTION, SUPREME COURT SHOULD HAVE REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the causes of action against plaintiff’s employer for negligence alleging an assault by a coworker should not have been dismissed. Defendants’ alleged that Workers’ Compensation was the plaintiff’s exclusive remedy. The Workers’ Compensation Board has primary jurisdiction over determinations of the applicability of the Workers’ Compensation Law. Because there were questions of fact about whether plaintiff was injured in the course of her employment, Supreme Court should have referred the matter to the Workers’ Compensation Board:

… Supreme Court improperly granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the negligence causes of action … . Since “primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,” it is “inappropriate for the courts to express views with respect thereto pending determination by the board” … . Here, questions of fact were raised as to whether the plaintiff was injured during the course of her employment, and thus, the court should have referred the matter to the Workers’ Compensation Board … . Chin v Doherty Enters., 2022 NY Slip Op 04532, Second Dept 7-13-22

Practice Point: Here plaintiff alleged she was assaulted by a coworker and sued her employer in negligence. There were questions of fact whether plaintiff was injured during the course her employment. The Workers’ Compensation Board has primary jurisdiction over determinations of the applicability of the Workers’ Compensation Law.. Therefore the negligence causes of action should not have been dismissed and the matter should have been referred to the Board.

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