Safety and OSHA News

Employee in uniform assaulted before work: Can she get workers’ comp?

Did a court find this case to be one of the exceptions to the “going and coming rule” that usually prohibits payment for injuries suffered by an employee on their way to or from work? 

Rosemary Rodriguez worked as a train conductor for the New York City Transit Authority (NYCT).

On Jan. 30, 2016, Rodriguez was scheduled to start her shift at 6:05 a.m. At 5:10 she was waiting for a train at a station to get to work when a passenger asked her to let him into the station without paying.

Rodriguez said she couldn’t open the gate, and the passenger jumped the turnstile and assaulted her. Rodriguez suffered multiple injuries to her face, head, neck and back. She applied for workers’ comp benefits.

A workers’ comp law judge denied her claim. The Workers’ Compensation Board affirmed that ruling with one judge dissenting. Rodriguez appealed to a state court.

The court noted injuries suffered while commuting to work are generally not covered by workers’ comp because of the going and coming rule, but there are exceptions.

In Rodriguez’s case, the court found:

  • Her injuries occurred almost an hour before the start of her shift, on her way to work, before signing in
  • NYCT neither encouraged nor benefited from her commute route
  • She wasn’t performing any duties of her employment or undertaking an errand for the employer
  • Although she chose to wear her uniform while commuting, she wasn’t required to do so
  • She also wasn’t required to use public transportation to get to work
  • NYCT provided a free transit pass, but its use didn’t make Rodriguez’s commute a part of her employment
  • While she was on property owned and operated by her employer, that didn’t establish a link between her employment and the assault
  • While injuries suffered from a work-related assault may be compensable, there wasn’t a sufficient connection between Rodriguez’s employment and uniform and the motivation for the assault, and
  • Rodriguez’s presence at the station served only her personal interest in getting to work.

For those reasons, the court agreed with the previous ruling that at the time she was assaulted, Rodriguez was a commuter using the subways to get to work like the general public. The court denied her request for workers’ comp benefits.

(Rosemary Rodriguez v. New York City Transit Authority, NY Appellate Division Third Department, No. 03887, 5/31/18)

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