Attendant who received transportation allowance does not receive compensation for bike accident

Summary
The 6th Panel of the TRT of the 2nd Region denied the payment of compensation to the worker who had a bicycle accident while going to work, as she had a transport voucher to use public transport.

The 6th Panel of the TRT of the 2nd Region excluded civil liability from the employer in a bicycle accident suffered by a cafeteria attendant on his way to work. The names of those involved were not disclosed.

The magistrates understood that the woman changed the way she traveled to work of her own free will, as she received transportation vouchers to use public transport. Thus, the collegiate denied the payment of compensation for material, moral and aesthetic damages, confirming the sentence handed down in the 4th Labor Court of Cubatão-SP.

In the process, the worker argues, among other points, that, because she was asked to start her journey an hour earlier than usual, she decided to go out on a bicycle, but was run over on the way. The incident resulted in a six-month leave of absence, with the receipt of accident benefit.

He claims to have suffered a second accident, when he slipped and fell in the company’s kitchen, with consequences that added to the previous ones and required surgery, physiotherapy and caused mobility difficulties. In testimony, the attendant confessed to receiving transportation vouchers paid in cash (three times a month).

In defense, the employer denied that he had asked the employee to start her shift earlier on the day of the accident and proved that, on the date of the alleged accident in the kitchen, she was off work. Furthermore, he stated that the choice of individual means of transportation (bicycle instead of public transport) was made without his participation, in addition to having provided assistance to the complainant after the incident.

The ruling, reported by judge Erotilde Ribeiro dos Santos Minharro, highlights the vulnerability of cyclists in comparison to passengers on regular public transport, especially in cities without cycle paths and cycle lanes, such as Cubatão-SP.

“It is clear that the accident, as it happened, would not have occurred if the complainant had at the time used public transport provided by the provision of transport vouchers”, states the judge.

Supported by jurisprudence, the rapporteur emphasizes that a commuting accident is equivalent to a work accident for social security and provisional stability purposes, but it is not to be confused with the employer’s civil liability, as this requires proof of the company’s fault, which does not there was in the case. The judge also did not recognize the second accident due to lack of evidence.