“Waiter, There’s Glass in my Pudding!”

Local 802 Legal Corner: Workers' Compensation and Musicians

Volume CIV, No. 1January, 2004

Harvey S. Mars, Esq.
Local 802 Counsel
Leibowitz & Mars LLP

Like any job, working as a musician can have its hazards.

Lighting fixtures may fall on you, you might injure yourself by tripping on wiring, or a piece of scenery may malfunction, causing injury.

Some Broadway musicians have had a peculiar occupational hazard: caustic fumes from pyrotechnics have caused or exacerbated their pulmonary ailments.

But did you know that if you are injured on the job, you can’t simply sue your employer for all he’s worth?

When musicians are injured on the job in New York State, their only recourse is to file a workers’ compensation claim. A direct suit against the employer for negligence is not an option. In this article, I will highlight various aspects of workers’ compensation law as it pertains to particular issues encountered by musicians.

Your entitlement to workers’ compensation is dependent upon whether you are injured while performing duties within the scope of your employment, according to Workers’ Compensation Law ยง10(1). This means you are covered by workers’ compensation if you are injured while playing your instrument during a paid performance.

But many musicians don’t know that if you receive meals as part of your compensation and you somehow injure yourself while eating, you probably are still limited to a workers’ compensation award for the injuries sustained.

For instance, in 1933, a musician brought a negligence suit against his employer for injuries sustained while consuming chocolate pudding which had pieces of glass in it. The suit was banned and the musician was not allowed to sue his employer directly because the meal had been provided to him by his employer as compensation for services rendered. The court held that injuries sustained while eating were within the scope of his employment and were solely compensable under the Workers’ Compensation Law. Elson v. Morhen Inn, Inc., 150 Misc. 540 (City Ct., Bronx 1933).

This should be contrasted with the general rule under Workers’ Compensation Law that mealtime injuries are deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the meal. Matter of Smith v. City of Rochester, 255 A.D. 2d 863 (3rd Dept. 1998).

Traveling to and from jobs is also problematic for musicians. Often they are required to travel out of the state or even out of the country to perform. When they do so, are they still covered by New York’s Workers’ Compensation Law? New York Courts have said yes.

In Williams v. Roadkill, Inc., 716 N.Y.S. 2d 478 (3rd Dept. 2000) an appellate court held that a professional musician who was required to perform at a concert in San Francisco scheduled by his employer was limited to New York workers’ compensation benefits when he tripped on the stage and injured his leg. The court held that there was a sufficient connection between his employment and New York, where he usually worked, to confer jurisdiction upon the New York Workers’ Compensation Board. Once again, this meant that the musician could not sue his employer personally, but had to accept benefits through workers’ compensation instead.

While it is true that working as a musician is not an implicitly dangerous occupation, care must still be taken while performing, since workers’ compensation and state-provided disability benefits are often marginal and many musicians do not have independent means to support themselves.

This means that even if your employer is a billionaire, you might not be able to collect millions from him, even if he is the most negligent boss in the world. Moral of the story: if you’re injured on the job, you’re stuck with workers’ comp claims.

Of course, no matter how much care a musician exercises while performing, there is just no protection against an unruly crowd who simply dislikes the music. I am reminded of the scene in the “Blues Brothers” movie when the country-western audience threw beer bottles at the chicken wire surrounding the Blues Brothers’ stage.

I imagine in that case, workers’ compensation benefits would be available, too.

Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.