Chapter § 5.19

• Jurisdiction: New York

[5.19] Is every workplace accident or injury covered by the WCL?

No. Although WCL § 21 creates a presumption that workplace injuries are compensable, not every accident or injury is in fact covered.

To be compensable, an injury must "arise out of and in the course of employment."⁷³ Activities that are "purely personal pursuits" are not within the scope of employment and compensation is not recoverable for injuries sustained while engaging in them.⁷⁴ In addition, WCL § 10 bars compensation when the injury: (i) has been caused solely by intoxication of the injured employee while on duty; or (ii) is the result of the deliberate intent of the injured employee to bring about injury or death; or (iii) the injury is sustained in off-duty athletic events under specific circumstances.⁷⁵

The test for determining whether a particular activity is within the scope of employment or is purely personal is whether the activity is both reasonable and sufficiently work related under the circumstances. An employee "may indulge in any reasonable activity [while on a business trip], and if he does so the risk inherent in such activity is an incident of his employment."⁷⁶ The determination of whether activity is unreasonable is factual, and the WCB is afforded "great latitude" in deciding whether the employee's conduct is disqualifying.⁷⁷

As with other WCB determinations, the line between what is reasonable and unreasonable is not always bright, and with some exceptions, courts and the WCB have frequently found that injuries arising from personal activities are compensable when they happen on business trips or during breaks in the workday.⁷⁸

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Notes:

^[73] See WCL § 10.

^[74] See, e.g., Pasquel v. Coverly, 4 N.Y.2d 28, 31, 171 N.Y.S.2d 848 (1958).

^[75] For athletic events, see § 5.18 above.

^[76] Capizzi v. Southern Dist. Reporters, 61 N.Y.2d 50, 55, 471 N.Y.S.2d 554 (1984), quoting Davis v. Newsweek, 305 N.Y. 20, 28 (1953).

^[77] Anadio v. Ideal Leather Finishers, 32 A.D.2d 40, 299 N.Y.S.2d 489 (3d Dep't 1969).

^[78] Compare Pasquel v. Coverly, 4 N.Y.2d 28, 171 N.Y.S.2d 848 (1958), with Leonard v. Peoples Camp Corp., 9 A.D.2d 420, 194 N.Y.S.2d 863 (3d Dep't 1959), aff'd, 9 N.Y.2d 652, 212 N.Y.S.2d 69 (1961); Rizzo v. Syracuse University, 2 A.D.2d 641, 151 N.Y.S.2d 724 (3d Dep't 1956); Simmons v. The Hedges, 286 A.D. 1044, 144 N.Y.S.2d 828 (3d Dep't 1955); Gabunas v. Pan American Airways, 279 A.D. 697, 108 N.Y.S.2d 372 (3d Dep't 1951).