Thought Leadership

The petitioner appealed the dismissal, with prejudice, of her workers’ compensation claim for temporary disability and medical benefits. She worked as a school nurse for the respondent. In September 2019, in order to make extra income, she reached out to the principal, Dr. Abraham, to inquire about also working as staff who monitor the A.M. Care program for a stipend of $30 a day. 

On September 11, 2019, she arrived early to participate in A.M. Care and saw Dr. Abraham in workout clothes. He invited her to participate in Cardio Club. According to the petitioner, Dr. Abraham stated, “We’re going to work out today in the gym. You can join us[,]” to which she responded that she wasn’t prepared to work out that day and “was going to Morning Care.” Dr. Abraham said, “[w]ell, it’s up to you.” The petitioner testified she felt she should follow his “directive” and changed into workout clothes to join in Cardio Club. While participating, she fell and was taken to the hospital. She was ultimately diagnosed with a closed wedge compression fracture of the fifth lumbar vertebrae and was advised she would be out of work for three months.

The petitioner then filed a workers’ compensation claim, which was denied as the employer argued her injury did not arise out of or in the course of employment. The parties then proceeded with a bifurcated trial to first decide the issue of compensability. 

The petitioner testified she was not aware she would not be paid for Cardio Club, she thought it was part of A.M. Care, and that the exercises there were more strenuous than what she had been doing. Dr. Abraham testified that the petitioner asked to participate in Cardio Club and that he advised her she would not be paid if she attended rather than the A.M. Club. Three other staff/teachers testified.

Subsequently, the judge issued an oral decision dismissing the petitioner’s claim with prejudice for failure to sustain her burden of proof. The petitioner appealed, noting the workers’ compensation court erred in finding the injury did not arise out of or in the course of employment and that this did not fall under the social or recreational activity exception.

The Appellate Division disagreed with the Workers’ Compensation Judge in the finding that the injury was not compensable as it was a recreational activity that did not produce a benefit beyond health and morale. Rather, the Appellate Division noted the Cardio Club was much more than a simple club for health and morale and that it infused academic, specifically math, concepts into the exercises.

However, the Appellate Division did ultimately find the injury was not compensable as there was a lack of requisite “work connection.” Specifically, the petitioner was a nurse, not a teacher, and her job included performing her duties as a nurse. She admitted she was not working in her capacity as a nurse in Cardio Club and that she only participated to exercise. As such, the Workers’ Compensation Judge found her participation to be voluntary, as there was no evidence of reprimands, etc., if one did not participate in Cardio Club, and her reluctance to refuse Dr. Abraham’s invitation was not dispositive. As the judge’s findings were supported by credible evidence, the Appellate Division affirmed.
 

_{What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}