Appellate Division affirmed dismissal of worker’s compensation claim for lack of compensability.

In this case, the trial was bifurcated to first determine if the accident took place in the course and scope of employment. The petitioner worked as a delivery driver for Next Mile, LLC, a subcontractor for Amazon, and would report to work in a parking lot to receive his assignments.

In August 2020, the petitioner arrived an hour before his shift and sat on the rear bumper of a delivery truck to wait. About 15 to 30 minutes later, a person wearing a mask and an Amazon vest shot the petitioner and fled. After being discharged from the hospital, he went to Massachusetts. He returned to New Jersey in December 2020, but after being followed by two unknown people wearing ski masks, he fled to Florida. The petitioner had a disagreement with a former co-worker, CJ Blocker, about money owed, one or two weeks prior to the shooting. They had no issues while employed, and at the time of the shooting, the petitioner still owed Blocker money.

After hearing from the petitioner, the workers’ compensation judge found his credibility “suspect at best” due to inconsistencies in his testimony and body language. As such, the judge found it was unnecessary for the respondent to present its case and found the injuries did not arise out of and in the course of employment. Specifically, the judge pointed out that the petitioner and Blocker had no issues while working together and the issue of owed money was unrelated to their employment. The judge dismissed the petitioner’s claim with prejudice.

The petitioner appealed, arguing the judge erred by incorrectly placing the burden of proof on him to demonstrate the incident was not the result of personal risk. The Appellate Division rejected this argument, noting there was no precedent of burden-shifting to a respondent to demonstrate whether an assault was due to personal risk. While the petitioner did not know the identity of the assailant, it did not matter as there was no evidence to show the shooting was causally related to the petitioner’s employment. 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 7, July 2024, is prepared by Marshall Dennehey 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 © 2024 Marshall Dennehey, 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.}