Safety and OSHA News

Injured on lunch break: Does employee get workers’ comp?


An employee was on an allowed lunch break. When he went just across the street from where he was working to eat his sandwich, he was injured. Should he get workers’ comp benefits?

Herman Huggins, a bricklayer, left his work site, bought a sandwich and sat down in a municipal bus shelter to eat it. The shelter was across the street from the work site.

A glass panel in the shelter collapsed on him, causing various injuries.

Huggins filed for workers’ comp benefits. A Workers’ Compensation Law Judge found that he sustained an injury arising out of and in the course of his employment and awarded benefits.

On appeal, the Workers’ Compensation Board reversed the ruling.

Huggins took his case to a New York state appeals court.

New York’s workers’ compensation law states, “Lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employees during the lunch break.”

Huggins argued that his employer maintained control over him during his lunch break because “if one of the foreman saw him and wanted him back” they would tell him to come back since he was just across the street.

The court didn’t buy that argument. It noted that he wasn’t required to carry a beeper, nor was he told where to eat his lunch.

Huggins also contended that his injury occurred sufficiently close to his work site to qualify as compensable.

Once again, the court said, “No.”

His third argument involved a theory on what caused the bus shelter to collapse: vibrations from the work site.

The court called that “entirely speculative.”

Having dismissed all his arguments, the court upheld the commission’s ruling and denied him workers’ comp benefits for his injuries.

What do you think about the court’s ruling? Let me know in the Comments Box below.

(Huggins v. Masonry, Appellate Div. of the Supreme Court of NY, No. 509560, 4/28/2011)

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  1. Final court ruling is justified in the sense that the place where the worker is taken lunch or where accident occured is not controlled by the employer.Employer cannot have unlimited liability for his employee. the earlier cour version that employee is under control doesnot hold as employee is under employment control as long as contract exist.

  2. George Colby says:

    The decision may have been ‘correct’ according to law, but for crying out loud, why not just pay for the guy to get better?!?!? It seems to me that the company he works for doesn’t value their employees as their most valuable resource.

  3. I am glad there is a state that has some strict laws. I agree with the ruling, in my state if it is a paid lunch it is considered within the scope of employment and we would have owned the claim

  4. Safety Guy says:

    I think he went after the wrong target. He should have filed against the municipality or bus company or both. The argument would entail how often a spot inspection is done on shelters. I’d probably say never. How often is upkeep performed on shelters, never. So he could prove negligence and get an award.

  5. Workers Comp has gotten so out of control. Cudos to the courts for using common sense. Our Workers Comp has just gone up an EXTRA 10,000.00 a year. That is for small plumbing shop with 9 techs on the road. I wish Indiana had more strict cirteria before paying Workers Comp. The only person that pays is the company/customer. So frustrating !!!

  6. We agree completely with the New York state appeals court. There was no control of or direction to the employee on where he should eat his lunch, therefore, the company is not liable. Would he have tried this same “stunt” if he had gotten in his car to drive to McDonald’s and been in a wreck? Possibly.

    There are to many employees trying to collect worker’s comp when they are injured as a result of their own negligence and not the result of unsafe conditions attributable to the employer.

  7. Tommy Tope says:

    I agree with the ruling, why cause the company to pay? He left the job site for lunch the company did nothing wrong, go after the city or whom ever else controls the bus stop’s

  8. Going after the city is not likely to net any results since they are probably protected by sovereign immunity.

  9. Cecilia says:

    People’s audacity never ceases to amaze me. The individual was off the job site and off the clock, the court’s decision is the only logical conclusion. The only time an employee could be held liable during a worker’s lunch break is if: 1. The company mandates where you take your lunch and you are injured. 2. During your lunch break a supervisor calls you back over to work; therefore you are back on company time.

    Most companies do not pay their employees during their lunch hour and most make it mandatory that a minimum of 30 minutes a day you do not get paid, because you are supposed to be at lunch. Even your contractors in Refineries are docked 30 minutes for lunch everyday, even though they can’t possibly leave the site. They are not working, not getting paid, but would in my opinion be eligible for worker’s comp if injured during this time because the employer still maintains control of them and they are still on the jobsite.

    I believe you are correct Safety Guy, if he wanted a lawsuit it should have been against the city, bus company, and the manufacturers of the structure. It is a shame that he was injured, but not his employer’s fault.

  10. if required to eat lunch on site it would be a different situation, but if able to leave the site to eat lunch he is on his own time.

  11. Safety Guy says:

    If he had a 30 minute lunch and was required to eat at the job site cafeteria and he got hurt then he could stake a claim. Matthew I don’t think too many employees are trying to collect worker’s comp. I would say the proper word choice would be some because there is no way we can be familiar with every case scenario. I’ve been working at an industrial logistics company for 3 years as a safety officer and we have not had 1 incident resulting in workman’s comp issues. What we must realize is medical is expensive and if the company is at fault wouldn’t it be easier to prove it and let them pay the bill? Workmans comp can be denied. It isn’t an automatic award.

  12. I think the ruling was fair amd justified. I know for a fact if this happened in Washington State that the worker would have recieved Full Boat Benifits and it would not have gone as far as it did.

    • Brenda Lee says:

      Molly? Are you still around, are you an attorney? I fell on the sidewalk in front of my place of employment on my lunch break in Washington State. I broke my glasses which need to be replaced, at a cost of $500. L&I denied my claim saying I was not “in the course of my employment”. Why did you think the worker in the New York bus shelter collapse case would have “Full Boat Benefits” in WA?

  13. I agree with the court’s ruling to deny Worker’s Compensation Benefits because he was on lunch break which is his personal time. Such an incident should be filed as a General Liability Claim against the city and its contractors for the bus station. That is the only avenue in which he can rightfully collect benefits.

  14. To George Colby
    I don’t understand why you think the employer should “just pay the guy anyway” We value all of our employees and we also pay $7 an hour for good health care benefits. Workers need to take responsibility for their own off the job injuries. If it weren’t for the 10% of the claim costing 90% of the money then the workers comp plans might work. We have a lot of workers who cheat and steal from the system and it causes the honest workers to pay. Go to the doctor and use your health insurance if it is not an on the job injury. If it is an on the job injury support the worker to get them transitioned back into the work force.

  15. I feel that the worker injured during his lunch break should be awarded workers compensation. I feel that the worker (unless lived in the same street or immediate area) wouldn’t have been at the bus shelter if he was not working at that job site i.e. it was the job itself that put the worker in the area?

  16. Simon – so if you have an accident on the way home from work the company should pay because he wouldn’t have been on that street if he was not at work?? With the mess the workers comp system is in now I sure hope you are not on the decision making team

  17. Tommy Tope says:

    Simon, come on man his boss did not tell him to go sit at that bus stop and eat his lunch. thats just insane to even consider, if you go to the store for your wife, twist your knee out of the blue is it her fault? It’s ideot’s like this that cause rates to go up for the honest employee

  18. Judging from past experience, this is not a valid work comp claim. Many years ago, our clinic treated an man who broke his arm while playing basketball on his lunchbreak, on a court that was on his employer’s property. After his initial treatment and referral to ortho, his claim came back as denied. He was on lunch, off the clock, therefore not technically at work.

  19. Chuck C says:

    The courts must be getting smarter. They ruled correctly. Maybe they are reading our comments lol.

    He was not in the course of working when the injury occured. This case is different than one we had several weeks ago that concerned a medical professional that simply stopped for a lunch between appointments. This guy legally punch the clock out when he left for his authorized lunch break.

  20. Finally a ruling from a WC board that is correct. No free lunch for this guy….

  21. Thank you Jan and Tommy

  22. Chuck C says:

    Reply to George Colby: So if we take your stand one step further and the bricklayer catches a cold or flu, wouldn’t the lost time and medical expenses be paid by workers’ comp or the employer since he normally works outside and is exposed to bad weather? Come on George, this sounds like welfare not Workers’ Comp.

  23. Safety Guy says:

    Damn Fran what city and state was that in? We had a similar issue in FL and claim was awarded.

  24. The final decision on this case is entirely correct. This was not in any way a workplace or work related injury. His claim should be focused on whoever is responsible for maintaining the shelter that collapsed. @Simon, do you feel that your employer is somehow responsible for your welfare from the moment you walk out your door until you arrive back home? The employer is in no way accountable for where anyone chooses to sit while off the clock and off the property.

  25. The WC system is not well know for its consistency….

  26. Safe T. Proff says:

    That was the correct ruling from the appeals court. I don’t understand how this was even discussed. Look, if a guy is off the clock and allowed to go wherever he wants for lunch, he’s basically on his own. ESPECIALLY if he decides to go off-site! Had this accident happened, say while sitting on a roof of the building he was working on, then maybe he had a case against the company for allowing this to happen (having lunch on the roof). But in this case, it should have been a no-brainer. It’s guys like this that sue companies for not labeling their COFFEE cups that the coffee may be hot (duh!)

  27. work safe says:

    am agree with you cecilia and the courts ruling against this employee good score in our site because if the court have awared this case 20% of employees may be cliaming work injuries at lunch time

  28. Lmatlock says:

    I agree totally with the ruling. The employee was on his unpaid lunch, on his own, away from work. Worker’s comp is for employees that are injured at work, conducting work duties. Okay. Case closed.

  29. I think the ruling during the appeal was correct. Why should a business’s workmans comp. have to cover an hourly employee who is not on a jobsite, company property, in a company vehicle, or doing anything related to his job duites. It was his lunch break which means ‘off the clock’. Sorry it happened to him, but some things are plain and simply … accidents. I beleive there should be reasonable and modest caps on ALL types of suites. So it is not an attractive thing for those trying to take advantage of the system. More personal responsibility and common sense judgements would go a long way in reducing everyones cost for insurance!

  30. Mindtrap says:

    Ha, GOOD its about time a company wins one!!!!!! Sue happy people, maybe he can try again and say he didnt get enough attention when he was a kid from his mother and its the company’s fault, pffffft.

  31. PO'd Safety Guy says:

    The WC Law Judge that first awarded benefits needs to be removed. That is a ridiculous ruling and a reason comp costs in NYS are prohibitively high. The Board got it right for a change.
    Simon – You’re kidding, right?

  32. Safety Coord says:

    How can employer control what an employee does on their lunch time? In some companies, employees work out in their “company’s” weight room or go on a run during their lunch break. That is an employee’s decision and an employer should not be liable for any injury sustained during these periods when an employee is not engaged in “work related” activities.

    Someone finally applied the law (and common sense) to workers comp benefits and rightfully denied benefits to a frivolous claim. Maybe this decision will send a message to that small minority who are always scheming on how to file these types of claims. They’re not only a waste of everyone’s time, but also undermine the American workforce.

  33. I agree with Safety Guy. The employee should have gone after the municipality whose bus shelter was so precariously built that the potential vibrations from construction across the street was enough to shatter the glass bus shelter. How sturdy was this bus shelter? And why make it of glass? Why not plexiglass? Did the city offer him any compensation?

  34. I agree with the decision, people look way to easily at OWCP to pay for whatever they do and that us a strain on everyone. Way to go New York!

  35. I’s just a shame that we have to spend so much time and money to get to the simple truth. How are we (U.S Companies) suppose to compete having costs like this?

  36. We had an employee take a morning break, saw a pretty snake that he was gonna take home to his kid, puts the snake in his lunch box…. lunchtime the dude reaches into his lunch box and got bit…turned out the snake was a poisonous coral snake… worker comp paid out $20K to make it go away, against my argument that the snake had nothing to do with the employees job description. The scumbag attorneys that are all over the boob tube telling the workers that they will represent the worker are the real problem and our carrier paid out cause their attorney fees would equal or better the payout!…the system SUCKS!

  37. Short term solution finacially by the TPA. Definately not work related. The long term effects of that settlement further entrenches the philosophy that if I scream hard enough and hire a lawyer – I GET PAID.

  38. Patricia Mejias says:

    This happened to me 2 weeks ago. I was crossing a big intersection to go buy a sandwich which I was going to take back to our office lunchroom and eat. It was raining and my light turned to “Walk” I went ahead and started walking and a livery cab didn’t stop quick enough for the light and knocked me down. I didn’t want to stay laying in the middle of a big intersection, so a man helped me up and got to a sidewalk. I called my co-workers on my cell and they came down. I was taken to the hospital in an ambulance and nothing was broken thanfully. The driver fled the scene and that really made me angry. I then contacted a lawyer and am going to sue. (I missed 2 days of work aftereards). They sent me to get PT and the PT people want me to come every evening after work. I also do a a work at home job and go to college on line. I told them I can only try to come 2 nights per week. So they suggested I go out on Worker’s comp and come during the day for PT. I really don’t want to do that, but after reading these posts, I see since I was on my lunch hour, I am probably not entitled. Any suggestions? Contact me at

  39. Although I sympothize for your situation, in my opinion, the employer is in no way responsible or accountable for the accident. This is a situation where the accountability lies with the driver that struck you, who apparently fled the scene. A person with integrity would use thier personal health insurance, who can choose to pursue an investigation against the driver or, if in their best interest cost wise pay thier share of your health care. One can also hire a personal lawyer to persue the driver of the vehicle. OR for those with little concious / integrity can do the dishonest thing and pursue a workers comp case against the employer who had nothing to do with the driver of the car or the intersection which was being crossed at the time. Hopefully if that avenue is chosen, the “victim” would have to shell out time and money and gain absolutely nothing, and hopefully, be prosecuted for attempted fraud of the Workers Comp System.

  40. Absolutely should get workers comp. If the judge had ever worked construction the outcome would have been different. Unfortunately the people with the most power to help have lived the MOST sheltered lives and not to mention raised on a conveyer belt. I would however as a civilian look into the bus stop falling and whether or not it was due to vibrations, might not be workers comp but a huge settlement waiting…just sayin.

  41. Cesar Sanchez says:

    In Huggins case, I believe he should have been awarded workers comp benefits. He was injured while on a paid meal break. He may of not been on the employer’s premises or in direct control of his employer, but the insurance company that issued the workers comp policy sure did get paid a premium for the time of Huggins paid meal break. This is reflected in the chargeable payroll exposure of the employer charged by the insurance company. Let’s say Huggins works a 40 hour work week. Of these hours, 2.5 hours are paid meal breaks (30 min paid meal break). Huggins wage earnings for those 40 hours of work result in chargeable payroll exposure to his employer, and in turn the insurance company is paid a premium on that payroll exposure for workers compensation coverage. The insurance company failing to cover Huggins for his injuries; although his payroll exposure shows him included in his employer’s workers comp policy, is fraud!!!!


  1. Injured on lunch break: Does employee get workers

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