new york 31503 640

Do You Know the Rule? N.Y. Presumption of Compensability for Workplace Assaults

22 May, 2024 Chris Parker

new york 31503 640

Albany, NY ( -- In New York, it’s presumed that an injury which occurs in the course of work also arises out of employment and is thus compensable under the state’s workers’ compensation law. That presumption applies equally to workplace assaults.

Compensability of injuries

To be compensable under New York’’s workers’ compensation law, an injury must have arisen out of and in the course of a worker's employment.  When that’s the case, the employee’s sole remedy is workers’ compensation; the exclusivity provision generally bars the employee from suing the employer for negligence.

Injuries that occur in the course of employment - rebuttable presumption

There is a rebuttable presumption set forth in Workers' Compensation Law § 21(1), which provides that when an injury occurs in the course of a worker's employment, it is presumed to arise out of that worker's employment and therefore is compensable, absent substantial evidence to the contrary. Thus, a court, barring convincing evidence to the contrary, will assume that the injury flowed as a natural consequence of the employee's duties.

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Applicability of presumption to assaults

In determining whether a victim of an assault at work is entitled to workers' compensation benefits, the test is whether the assault originated in work-related differences or from purely personal animosity between the assailant and victim.

However, the presumption applies to such assaults. It’s up to the employer to overcome that presumption by presenting substantial evidence establishing that it was not the workplace itself that exposed the employee to harm. 

In some cases, there may be no evidence of what motivated someone to commit the assault in the workplace. But the fact that the assailant’s motives are a mystery doesn’t on its own alter the presumption that the assault arose out of work. That presumption still applies, and, if substantial evidence to the contrary is not presented, will in most cases mean that the employee’s sole remedy is workers’ compensation – meaning he is out of luck if he wants to sue his employer for damages in tort.

Case examples

Timperio v. Bronx-Lebanon Hosp. Ctr., No. 46 (N.Y. 05/16/24): Because there was no evidence as to why a coworker shot a medical resident he had never met at the hospital where they worked, it was presumed that the resident’s injury arose out of his employment.

Rosen v First Manhattan Bank, 84 N.Y.2d 856 (N.Y. 1994): Given evidence that the victim and assailant were co-workers who may have been engaged in a dispute over a loan of money — a practice which was condoned by the employer — and that the parties had no social ties outside of work, the police investigator's testimony that the assault was motivated by robbery was insufficient to overcome the statutory presumption that the dispute was work-related.

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