Injury during commute is complex under New York workers’ compensation law

While injuries incurred during a regular work commute are generally not compensable, exceptions may apply.

The lawyers at Silverman, Silverman & Seligman, P.C., in Schenectady represent injured employees in the fight for workers’ compensation under New York law. We have years of experience and our attorneys put their intimate knowledge of the twist and turns of workers’ compensation law to work for the benefit of our clients.

The going-and-coming rule

One complicated area of New York workers’ compensation is the question of coverage when an injury occurs during a commute to or from work. Broadly, an employee who is injured during a regular commute to or from the workplace is not covered by workers’ compensation because of the so-called going-and-coming rule.

There are, however, complex exceptions to this rule that are dependent on the particular circumstances of the injury.

Subway worker example

Warner v. New York City Transit Authority is a 2019 decision from the New York Supreme Court, Appellate Division, Third Department, that provides an example of how the going-and-coming rule is applied.

Marcus Warner was a subway cleaner who worked the overnight shift in New York City. One morning he was taking a subway train home from work after clocking out in the morning. During that trip, a passenger assaulted him, resulting in serious injuries.

He filed for workers’ compensation, but it was denied both by a workers’ compensation law judge and by the Workers’ Compensation Board. On judicial review, the court agreed that the claim should be denied because of the going-and-coming rule.

Arising out of and in the course of employment

A basic premise of workers’ compensation is that for an injury to be covered and compensable, it must have arisen out of and in the course of employment. The commute between home and work is not considered to be in the course of employment. The worker chooses the route and the mode of travel independently and they are not under the control of their employer at that time.

The court reasoned that Warner’s shift was over and he had clocked out. He was not on a train to work, but to get home. He was not working or doing an errand for his employer. When he was assaulted, he was not doing any duty or task in the course of his employment.

In some cases, however, exceptions to this rule may apply. For example, the claimant may be eligible for benefits if during their commute they do a special errand for the employer’s benefit or if there is a dual purpose to the trip, one of which is work related. These exceptions are complex though, so a lawyer should carefully evaluate the claim.

Seek legal counsel

If you have suffered a work-related injury or occupational disease, do not wait. Give your employer notice of the harm as soon as possible. Then consult legal counsel, such as an attorney at Silverman, Silverman & Seligman, P.C., for assistance with filing your workers’ compensation claim. The earlier we can become involved, the more robust your initial claim will be. Approval at the filing stage may save you months of appeal time and you can begin receiving benefits to which you are entitled and that you may need should you be unable to work. Your workers’ compensation should also cover your medical bills.

However, even if you did not talk to legal counsel early on in your claim, an attorney can come in and represent you at a later stage of the claim such as at review before a three-person review board panel, the full board, an administrative law judge or the appeals council. Review is also possible in state court. There are deadlines throughout the process, so do not delay. You also may want to discuss with a lawyer the pros and cons of settling your case.