In the Matter of the Salvation Army Buffalo ADU, 2021 NY Wrk Comp G2611715, it was determined that a slip and fall accident in an icy parking lot on the claimant’s way into work had occurred within the claimant’s scope of employment when she had been asked by her employer to transport one of her co-workers to work on the date of the accident.
The claimant testified that the day prior to the accident, her manager asked her to drive the assistant manager to work the next day, who was without a ride and was in possession of a store key to open the store. On the date of accident, while walking into the store after picking up the assistant manager, the claimant slipped and fell in the snowy parking lot.
The carrier argued that the claim should be disallowed as the claimant was not in the course and scope of her employment at the time of the accident and it did not occur on the employer’s premises. The claimant argued that the claim was compensable because she was engaged in a special errand at the time of her accident. The Law Judge determined that the parking lot "was a risk shared by the general public” which “does not constitute an accident related to her employment,” and the claim was disallowed.
The claimant appealed and the Board Panel majority reversed the disallowance of the claim, finding that the claimant’s accident arose out of her employment. In the Mandatory Full Board Panel Decision, it was noted that generally, “an injury sustained during travel to and from work is not compensable under the Workers' Compensation Law as it does not arise out of and in the course of the injured worker's employment (see Matter of Slack v Livingston-Wyoming ARC, 294 AD2d 716 [2002], lv dismissed 98 NY2d 727 [2002]) . . . [A]n exception to this rule lies where the employee is engaged in a 'special errand' for the employer. To trigger such exception, it must be demonstrated that the employer both encouraged the errand and obtained a benefit from the employee's performance thereof (see Matter of Neacosia v New York Power Auth., 85 NY2d 471 [1995]; Matter of Dziedzic v Orchard Park Cent. School Dist., 283 AD2d 878 [2001])" (Matter of Carney v Regal Dry Cleaners, 302 AD2d 702 [2003]). "Coverage for employees on special errands is portal-to-portal" (Matter of Gray v Lyons Transp., 179 AD2d 985 [1992][internal citations and quotation marks omitted]).
The Mandatory Full Board Panel Decision found that the record supported that the claimant was on a special errand at the time of her accident since she had been asked by the manager to bring the assistant manager to work on the date of the accident, which was a benefit to the employer since the claimant did not have a key to the store and the assistant manager did. Therefore, it was determined that the claimant’s accident arose out of the course and scope of her employment as she was on a special errand, which would allow her "portal-to-portal" coverage.
Based on this decision, it can be presumed that but for the fact that the claimant had been asked by her manager to drive the assistant manager to work on the date of the accident, this claim would not be compensable since generally, a slip and fall in a public parking lot on one’s way into work would not be found to be compensable.