FOA Wins Comp Claim for a Client Who Was Stuck by an SUV While Walking to Work

The workers’ compensation law states that generally, accidents that happen outside of work hours and are not at the workplace, are not covered. Thus, if you are traveling to or from work and are injured, your injuries may not be covered under the workers’ compensation, because you are on your personal time. However, when an accident happens near the workers’ place of employment during working hours, there develops a gray area.  Since the risks of travel merge with the risks attendant with employment, the mere fact that the accident took place on a public road or sidewalk does not automatically negate the right to compensation.

In those situations, the injuries can be covered under workers’ compensation if there was a special hazard at the off-premises site of the accident and there is a close association with the access route the worker was traveling when he/she was injured on the way to or from the employers’ premises. The reasoning is this permits the inference that the accident happened as in incident and risk of employment.

In our case, it was an early Spring morning, and it was fairly dark out at the time of the accident. Our client had parked his car in the same location he and other co-workers routinely parked for work. He then attempted to cross a busy public road to enter his workplace. The employer’s human resources manager testified the road was not a safe street to cross because cars routinely sped on the road and that workers had to literally run to cross safely.

As our client was crossing the road, a large SUV made an unsafe turn and struck our client, seriously injuring him. There were no crosswalks at the location our client was crossing the road. The insurance carrier denied the claim for works’ compensation benefits, arguing our client had not reported for work yet and was therefore not entitled to compensation benefits.

After the case was litigated, the Workers’ Compensation Law Judge determined the injury was covered under the law. The insurance carrier appealed, and the Compensation Board’s Review Division upheld the decision, with one Commissioner dissenting. The insurance carrier then appealed the decision to the State of New York, Supreme Court, Appellate Division, Third Judicial Department arguing the case should be disallowed.  Following the appeal, the Supreme Court affirmed the Board’s decision and agreed the injured worker’s accident was covered by the Workers’ Compensation Law.

The Court noted that since our client routinely used a parking location that only employees of his workplace used, the Board could reasonably determine that a special hazard existed since there was no parking available to workers on the employer’s side of the road. This parking location forced our client to cross the busy road without a crosswalk to enter his workplace. Further, based on regular use of the entrance by our client and other workers, and its close proximity to where the accident happened, there was a permissible conclusion that the accident happened as an incident and risk of employment.


Written by David Stauber, Esq.