Assault on NYC Subway Employee Exiting Train Did Not Occur In Course of Employment

Employee Had Clocked Out and Traveled Six Stops Toward His Home

Where a New York City subway train cleaner clocked out at the end of his shift, left his assigned work train station, traveled toward his home on a subway for approximately five minutes (six stops), and was assaulted as he exited the train, his injuries did not arise out of and in the course of his employment, held a state appellate court [Matter of Warner v New York City Tr. Auth., 2019 N.Y. App. Div. LEXIS 3131 (Apr. 25, 2019)]. Affirming the decision of the state’s Workers’ Compensation Board that in turn affirmed the denial of the claim by a Workers’ Compensation Law Judge, the appellate court said the claim was barred by the operation of the going and coming rule.

Background

There was evidence that the perpetrator of the assault had become irate by claimant’s warning that a prior passenger had relieved herself in the seat where the perpetrator was about to sit. Claimant argued that he wore a jacket, a safety vest, and a hat bearing his employer’s logo at work and during his commute and that his identification as a subway employee contributed to the chances of his assault. The appellate court disagreed, noting that claimant was not required to wear the coat, vest, or hat during the commute.

No Presumption of Coverage

The court also noted that, contrary to claimant’s argument, the presumption embodied in N.Y. Workers’ Comp. Law § 21(1), “that an accident that occurs in the course of employment also arises out of such employment” was inapplicable since claimant was not doing anything that was “in the course of employment” at any point during his commute, including when he was assaulted.

Assaults Not Always Compensable

The appellate court stressed that although injuries resulting from work-related assaults are compensable under certain circumstances, those circumstances were not present. The incident occurred six train stops away from claimant’s assigned station, after he had completed his shift, and he was not performing any services for the employer on his commute home. On that basis, the record supported the Board’s determination that there was no nexus between the motivation for the assault and claimant’s employment.