Compensability

The recent decision in Sykes v. George Harms Construction Company, Inc., No. A-3320-20 (App. Div. September 28, 2023) addresses an unusual claim involving a worker who was found passed out on the job while operating an excavator.  The petitioner filed a motion for medical and temporary disability benefits seeking an MRI of the neck, low back and shoulder.  Respondent opposed the motion, and the petitioner’s motion was tried to a conclusion. 

No one really knew for sure what happened on April 30, 2019 but it was clear that petitioner was found unconscious in the excavator he was operating.  Petitioner was a long-time employee of the company who was operating a 56,000 pound excavator on a bridge construction project in Manahawkin, New Jersey. The excavator and a separate dump truck were on the shoulder of Route 72.  There was a line of barriers separating the workers from traffic.  Petitioner was removing precut asphalt from the shoulder and depositing the asphalt in a dump truck.  His job required banging on a precut piece of asphalt with the bucket of the excavator to break it off and then go below the piece and scoop it up.  Once he had the asphalt in the bucket, he would swivel the cab around without moving the excavator tracks and dump the asphalt in the dump truck.

After about two hours of doing this work, petitioner said that a piece of asphalt broke loose, causing the excavator to pop backwards and the front part to lift up.   Petitioner further elaborated that the excavator “jolted” when he attempted to lift a piece of asphalt, causing him to “have a feeling of falling backwards” after which he had no specific recollection. Petitioner admitted to a history of seizures.  He believed that his head or body must have contacted something in the excavator.  At the time of his hearing, petitioner had not worked since the date of the accident and was experiencing headaches and pain in his neck, back and shoulder.    

The dump truck driver said that he was responsible for watching the excavator through his side mirror for hand signals from the operator that the truck needed to be moved forward or backward in loading the asphalt. He noted that after petitioner scooped a bucketload of asphalt and swung the arm of the excavator over the dump truck, there was a pause.  He then heard the tracks of the excavator and watched it start to pivot sideways and move toward the travel lanes.  This motion pushed a barrier about two to three feet into the travel lane and deposited a two-foot by three-foot piece of asphalt onto the roadway.

The dump truck driver radioed another worker to check on petitioner.  The dump truck driver then hopped over the barrier to waive off traffic from the hazard.  The worker who was sent to check on  petitioner found him “passed out.”  He was “sitting upright” in the upholstered operator’s chair, as he normally would, but his head was hanging down toward his chest.  The worker engaged the safety lever and climbed up into the cab to turn off the machine.  He reached across petitioner’s body to get to the keys when petitioner woke briefly and seemed to take a swing at him before passing out again. 

The foreman also testified and said that petitioner was initially unresponsive but eventually climbed out of the excavator without assistance. The foreman then used the excavator to pull the piece of heavy asphalt out of the road and slide back the barrier.

The CEO of George Harms also testified in the case.  He said that the operator’s chair included a headrest, and that there was at least a foot of space between the headrest and the rear cab window and approximately 18 inches between the chair and the windows on either side.  He added that the tracks of the excavator are controlled by foot pedals.  He surmised that petitioner’s foot must have activated one of the pedals, causing the excavator to pivot into the barrier.

The Honorable James Robertson, Judge of Compensation concluded, “neither the tamping of the bucket to break the asphalt nor the contact of the excavator with the Jersey barrier would have created the type of motion needed to create the injury that the petitioner claims that he suffered.”  The judge did not accept petitioner’s contention that “the jolting of the excavator and pulling up that piece of material” caused him to strike his head, rendering him unconscious.  The judge based this conclusion in part on the dump truck driver’s testimony that after petitioner had the asphalt in the bucket, he maneuvered the arm of the excavator over the dump truck and paused.  The judge concluded that this showed that petitioner was conscious “all the way around until the arm of the excavator was over the truck.”

The most interesting aspect of this case deals with case law on idiopathic cardiovascular events and related physical injuries.  Often a non-work stroke or heart attack occurs at work, followed by a fall causing a new injury.  Respondent need not pay for the cardiovascular incident, but respondent would have to pay generally for the physical effects of the fall if there is clear causation.  Petitioner’s counsel analogized to this well-defined principle of law.  He argued that regardless of whether it was a seizure that caused petitioner’s loss of consciousness or whether he struck his head during use of the excavator, his loss of consciousness occurred during the course of employment.  Therefore, petitioner contended, the physical injuries must be compensable. Judge Robertson rejected this argument stating as follows:  “there is no presumption that once a petitioner goes unconscious, that whatever else he claims happened to him must have happened during the course of the accident.”

Petitioner’s counsel cited to various cardiovascular incident cases that have been decided over the past 100 years where related physical injuries were held compensable.  Judge Robertson distinguished those cases: “[i]n all of those cases . . . there was no doubt what happened to the petitioner after the loss of consciousness.”  He noted that in Reynolds v. Passaic Valley Sewerage Comm’rs, 130 N.J.L. 437 (Sup. Ct. 1943), aff’d, 131 N.J.L. 327 (1944), Mr. Reynolds’ face got pressed against a burning coal stove.   In Spindler v. Universal Chain Corp., 11 N.J. 34 (1952), Spindler severely injured her hip when she tripped and fell on a concrete floor.  In George v. Great Eastern Food Products, Inc., 44 N.J. 44 (1965), a worker suffered an apparent non-work cardiovascular event and fell to the floor fracturing his skull.  The skull fracture was found to be compensable on the theory that the concrete floor was part of the work premises and contributed to the injury.

Judge Robertson found that there was no evidence that petitioner “suffered the impact that he thinks he did to cause the injury to the shoulder and the back.” The judge concluded that petitioner’s testimony was not based on what he saw or heard but only on “theory or conjecture.” He also based his decision on the testimony of respondent’s various witnesses who refuted the petitioner’s version of how he suffered physical injuries. Medical experts also testified in this case, but the judge found that this case turned on the facts. He was not persuaded by the testimony of the medical experts because their testimony on causation was premised almost entirely on the factual version petitioner provided to them.

The Appellate Division affirmed the decision of Judge Robertson on the ground that there was sufficient credible evidence to support the trial judge’s conclusions and affirmed “for the reasons expressed in Judge Robertson’s thorough and thoughtful opinion.”   

This case is important to practitioners and employers for two reasons.  First, there are not many published or unpublished appellate cases dealing with cardiovascular events and subsequent physical injuries. Secondly, this case represents a sub-type of cardiovascular event followed by alleged physical injury where the cause of the physical injury remains at issue.  In the reported cases noted above, the cause of the physical injury is quite clear.  For example, several involve cardiovascular events followed by a fall onto concrete resulting in a fractured skull.  In that type of case, causation is clearly established, but in this case the facts were always in dispute as to the cause of any head, neck, back or shoulder issue. The trial judge rejected the argument that there is a presumption that the subsequent physical complaints and injuries must be related to the idiopathic cardiovascular event. 

One final lesson in this case should be considered by practitioners and employers in regard to trials in general.  There are cases that depend heavily on facts and there are likewise cases that depend mostly on law or medicine.  This was a fact-based decision.  All too often employers and their attorneys fail to make that distinction and do not produce fact witnesses to support their denial of a case.  In a dispute over the facts where the case turns mostly on the facts, defense needs to bring in lay witnesses. This was a well-tried case by the respondent and its counsel dealing with complicated facts and legal issues, and respondent was able to produce credible testimony from a number of key fact witnesses.  The trial judge’s decision, which was endorsed completely by the Appellate Division, turned on the credibility of the testimony produced by respondent’s lay witnesses.

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One of the most interesting workers’ compensation cases in a long time is Van Sciver v. Jersey Mechanical Contractors, Inc., No. A-3525-20 (App. Div. November 15, 2022).  There are layers of legal issues in this case, which involved a very serious accident injuring Mr. Van Sciver when a tank filled with acetylene gas exploded.

Mr. Van Sciver worked for a family owned business with its main office in Farmingdale, New Jersey, a small borough in Monmouth County near Howell Township.  The business provides mechanical contracting services at various jobsite locations.  Petitioner started working with the company in October 2019 and belonged to a union.  At the time of the injury he was a second–year apprentice pipe fitter and truck driver working from 7:00 a.m. to 3:30 p.m.  A large part of his job was to make deliveries to the company’s jobsites of tanks of acetylene gas (B-Tanks). These were used to solder pipes.

Petitioner’s Supervisor, Mr. Butler, advised him on September 29, 2020 to exchange two empty B-Tanks for full ones at a store which serviced B-Tanks.  He also had to deliver one full B-Tank to a jobsite in Livingston, N.J. and deliver paychecks to Jersey Mechanical employees at five jobsites. One of those jobsites was in Bordentown, N.J. After arriving in Bordentown, petitioner met the job-site foreman, Mr. Catavan, who asked if petitioner was delivering a full B-Tank.  Petitioner advised Catavan that he had not been so instructed.  Catavan said he would communicate with petitioner’s supervisor because Catavan had been expecting a B-Tank that day, having made a request to the supervisor, Butler, the day before.

Petitioner finished his day by returning the company truck to Farmingdale.  Without being instructed to do so, petitioner proceeded to load a full B-Tank into the hatchback of his personal vehicle.  His plan was to drop if off to Catavan the next day in Bordentown.

Petitioner drove home to Mt. Laurel, where he lived.  He passed Bordentown but did not stop at Bordentown because it was too late in the day.  The next day petitioner got up and drove to work, passing Bordentown again and forgetting to stop there.  After passing Bordentown on the highway, petitioner received a text message from the company owner’s nephew, Mr. Dietrich, asking him if he could pick Dietrich up and take him to work.  Dietrich lived near Farmingdale but could not drive due to a foot injury.  Petitioner agreed to pick up Dietrich.

Shortly after receiving the text message, petitioner heard a hissing noise in his vehicle.  He then remembered he had the B-Tank in the hatchback of his car.  He stopped on the side of the road, opened all the windows, exited his car and began to open the hatch when the B-Tank suddenly exploded.  Petitioner suffered serious injuries and was in a coma for eight days.  He underwent multiple surgeries and lost the use of his eye.  Petitioner eventually filed a claim petition and motion for medical and temporary disability benefits.  Jersey Mechanical denied the claim and argued that the injury did not arise from employment in part because petitioner was on his way to work when the accident happened.

At trial, evidence was offered that petitioner had been told not to use his personal vehicle for company business.  The Union Agreement prohibited the use of personal vehicles for company business.  Petitioner had received training on handling B-Tanks and had been advised that B-Tanks should not be stored in confined spaces. 

The Judge of Compensation ruled that the B-Tank “was a workplace instrumentality of” Jersey Mechanical.  The judge also ruled that petitioner had been asked to pick up Mr. Dietrich while he was on his way to work.  The judge further found that petitioner had an objectively reasonable basis in fact for believing that he really needed to pick up Dietrich given that Dietrich occupied a high-level position in the company.   The case was found compensable on the theory that petitioner was injured while performing a special mission based on the theory of compulsion.

Jersey Mechanical appealed and argued that there was no special mission in this case and that petitioner was never asked nor directed to deliver the B-Tank outside working hours or in his personal vehicle. Jersey Mechanical also argued that petitioner deviated from his job duties by loading the B-Tank in his personal vehicle. The employer also attempted to argue on appeal (but not at the Compensation Court trial) that petitioner willfully failed to make use of proper personal protective devices causing his injury.  Neither the Judge of Compensation nor the Appellate Division was impressed with this argument. It is not clear what proofs respondent offered as to the willful failure to make use of proper personal protective devices.

The Appellate Division agreed with the Judge of Compensation that petitioner had a reasonable basis to believe that he needed to pick up Dietrich given Dietrich’s high position in the company.  That brought the case within various “compulsion” decisions which have held that when an employee is compelled to perform a certain activity, that activity becomes compensable.  The Court also considered the fact that the accident only happened because of the presence of the B-Tank in petitioner’s vehicle.  The Court analyzed the issues as follows:

Nevertheless, the B-Tank’s presence in petitioner’s personal vehicle is a relevant consideration in examining the special mission to pick up Dietrich.  The explosion would not have happened without the B-Tank being in petitioner’s personal vehicle.  The compensation judge found, however, that petitioner’s sole motive in placing the B-Tank in his vehicle was to facilitate a delivery for his Employer. The compensation judge also found that the B-Tank was an instrumentality of the Employer.  Consequently, that no one directed petitioner to place the B-Tank in his personal vehicle does not take the accident outside of the special mission to pick up Dietrich.

The case raises several provocative issues:

1. Was the Court correct that it even mattered that petitioner was on a “special mission” to pick up Mr. Dietrich given that the accident only happened because of a hazard inside petitioner’s car?
2. Would this case have been found compensable even if petitioner had been driving to work given the highly dangerous B-Tank in a confined space?
3. Was petitioner’s conduct a major deviation along the lines of Money v. Coin Depot Corp.?

The answer to question number one is important because virtually all the special mission cases involve hazards outside the petitioner’s own vehicle while performing the special mission:  another car striking the vehicle or dangerous icy road conditions.  There are no special mission cases involving a hazard inside the petitioner’s own vehicle.  In this case there is a strong argument that it made no difference legally whether petitioner was driving toward Farmingdale for work or to pick up Mr. Dietrich because the explosion (the gas leak started within petitioner’s vehicle) was going to happen when it happened, regardless of where petitioner was going.  The special mission in picking up Mr. Dietrich did not add any risk at all.  He was still headed in the same direction on the same road.  The explosion occurred before petitioner picked up Mr. Dietrich.  In essence, the Court found this case compensable because of the text message request to pick up Mr. Dietrich, which caused no immediate change in the travel route and which had nothing to do with the highly dangerous risk of a gas leak within the petitioner’s own car.   

The second question would have been an interesting one for the Court to have addressed. Could the Appellate Division have ruled that the B-Tank was an instrumentality of the employer, and therefore the extreme hazard posed by the presence of the B-Tank in the car – and subsequent explosion – arose from work, even if petitioner was driving to work?

It is truly rare for an injury on the way to work to be found compensable. But there is one unreported Appellate Division case where a drive to work was found compensable due to extreme hazards.   

In Minter v. Mattson, No. A-1916-15T4 (App. Div. May 10, 2018), Mr. Minter called out of work due to a heavy snow storm.  The director of the food service company contacted another employee and told him to pick up Minter on the way to work even though Minter had called out of work.  Minter decided to get in his colleague’s car and go to work because he thought he would be fired if he did not.  On the ride in, the roads were treacherous with icy conditions. The co-employee lost control of his vehicle and Minter was severely injured in a head-on car accident.  The Appellate Division found that the ride to work was work related as to Minter because he felt compelled to go even though he had called out of work.

If an employee who worked in a pet store which sold snakes was asked to drive some snakes to or from work, and one of the snakes got loose and bit the driver employee, causing severe injury, would that injury be compensable based on the unusual nature of the hazard?  There are no published cases in New Jersey addressing this kind of fact pattern.  

The third question is also most interesting. Did Mr. Van Sciver’s action in loading a B-Tank in his private vehicle against company rules and without direction from anyone at the company constitute a major deviation?  In the Money case the Court held that petitioner’s actions in playing Russian Roulette in his armored car vehicle constituted a major deviation from employment when Mr. Money shot and killed himself.   The widow’s dependency case was therefore dismissed.  In this case, the Court did not feel petitioner’s actions constituted such a major deviation from employment. 

There are also cases where a personal risk disqualified the employee from compensation, such as Coleman v. Cycle Transformer. There the petitioner got a permanent wave solution the night before work, and then lit a match at work the next day causing her hair to ignite with resulting burns.  The Supreme Court denied the case because petitioner created the risk of igniting her hair outside work with the permanent wave solution.  In this case the petitioner testified that he only loaded the B-Tank in his vehicle because the Bordentown site supervisor wanted a B-Tank, although petitioner forgot about dropping it off the next morning.  That seems to take it outside the rule in Money, where petitioner knew fully well that he was putting his life on the line by playing Russian Roulette. This case is unreported, meaning courts need not follow the rule of the case, but the facts of the case raise many interesting questions for practitioners to consider.

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Workers’ compensation practitioners have all heard of the defense of deviation from employment.  But where does the defense come from?  The New Jersey Workers’ Compensation Act has well over 100 sections to it, but nowhere will you find any reference to the defense of deviation from employment.  Yet the defense does exist.  We know that because the New Jersey Supreme Court said 20 years ago in Jumpp v. City of Ventnor that the distinction between major and minor deviations still prevails, even though there is no mention of it in the statute and no mention of it in the 1980 Amendments.  

The principal sources of workers’ compensation law are the statute itself and the cases that have been decided over the years.  The single best treatise on workers’ compensation ever written remains Larson, Workers’ Compensation Law.  The author wrote 50 years ago about this distinction between major and minor deviations and suggested a framework to view this important defense. He said one must focus on the following:

1. The extent and seriousness of the deviation
2. The completeness of the deviation (i.e., whether it was commingled with the performance of duty or involved an abandonment of duty);
3. The extent to which the practice of horseplay had become an accepted part of the employment; and,
4. The extent to which the nature of the employment may be expected to include such horseplay.

The deviation from employment defense focuses on the conduct of the employee.  It is not a medical-oriented defense such an idiopathic injury or a defense that the injury at issue is a preexisting medical condition.  The cases in New Jersey fall into two broad categories:  those involving actual travel and deviations from the normal itinerary, and those involving somewhat outrageous conduct in respect to what an employer would normally tolerate at work.

An example of the first category would be an employee who is assigned to travel from Cherry Hill, N.J. to Washington D.C. to meet with a customer. The employee decides on the way down Route 95 to literally deviate from the expected travel route in order to visit a popular restaurant 60 miles to the west in Gettysburg, PA.  An accident occurs on leaving the restaurant in Gettysburg.  This sort of unwarranted side trip would be denied as a deviation from employment.  It would be a major deviation because of the sheer distance involved.

An example of the second category would be an employee who brings ankle weights or jump rope into work and then during a break decides to do some aggressive exercise near her desk, falling and then fracturing her femur.  In this case the denial again focuses on the worker’s activity and how far afield the activity is to the normal work duties.

It is not necessary for this defense to prove that the employee drove far out of the way.  In the Jumpp case the injured worker, who drove around town checking pumping stations, only deviated by about 20 or 30 feet in pulling into a post office parking lot to get his personal mail.  He fell in that lot and fractured his pelvis. The Supreme Court held that this was a major deviation from employment because the activity in getting his own mail was completely unrelated to his job in maintaining pumping stations in town.    

The line between major deviation and minor deviation is not always clear.  In Trotter v. Monmouth County, petitioner had been cutting grass on a very hot day in 1972.  He and a co-employee, Mr. Adcock, joined several other workers who started throwing water at one another to cool off.  Then Trotter chose to take Adcock’s motorcycle for a ride. He drove off County property for two or three minutes and ran into a telephone pole. The court found that this conduct constituted a deviation from employment.   

In contrast, the injured worker in Cooper v. Barnickel Enterprises, decided to take a coffee break in the morning when he was unable to speak with his instructor, who was teaching a class.  Petitioner drove his company truck to a delicatessen five miles away from the union hall where his instructor was teaching the class. He had an accident along the way.  He said he was going to get a good cup of coffee.  He passed several coffee shops along the way.  He said, “I was going to kill some time, go get my coffee, come back and if I had time I’d sip it and when the class was over I would talk to John (the instructor) without interrupting him.”  The Judge of Compensation ruled in favor of the employee and found just a minor deviation.  The Appellate Division agreed that this was a minor deviation from employment. 

Outrageous conduct was the crux of Money v. Coin Depot Corp.  Mr. Money worked as an armored truck security guard.  He was required to carry a handgun.  He and two other employees were transporting money when the decedent pulled out his gun and placed it against his chin.  He had played Russian Roulette on prior occasions.  This time when he pulled the trigger he killed himself.  The Appellate Division found that this was clearly a major deviation from employment because the petitioner’s actions created an extraordinary risk of harm.

As can be seen from these cases, this defense requires a thorough examination of the facts and an understanding of the normal work duties.  As Professor Larson points out, if the departure from normal work activities is an accepted part of employment, then the Judge of Compensation will not find it to be a deviation.  In Secor v. Penn Serv. Garage, the petitioner got splashed with gasoline while filling a customer’s gas tank. His boss suggested that he change his clothes.  Mr. Secor declined and then later lit a match while smoking a cigarette. His clothes burst into flames, and he was seriously burned.  The court found this to be a minor deviation.  There was clearly no outrageous conduct here; the most that can be said is that the injured worker was clearly negligent, but mere negligence does not amount to a major deviation.

When you consider this defense, you may want to view it this way:  does the activity have some relationship to work or is it akin to abandoning employment?  The more outrageous the activity, the more likely it will be viewed as a major deviation or abandonment of employment.

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On December 8, 2021, the New Jersey Appellate Division affirmed the dismissal of a claim for serious back injuries filed by Meghan Ryan-Wirth, a school nurse, against the Hoboken Board of Education and the Pooled Insurance Program Joint Insurance Fund. Petitioner, a school nurse, was injured participating in a morning Cardio Club activity with teachers and students. The case is important because it is one of the first cases to discuss the recent New Jersey Supreme Court decision in Goulding v. NJ Friendship House, 245 N.J. 157 (2021).

The key facts are that Ms. Ryan-Wirth filed a claim petition and motion for medical and temporary disability benefits seeking an order compelling the Hoboken Board of Education to pay for her fusion surgery as well as temporary disability benefits.  Capehart Scatchard defended the Hoboken Board of Education and the Pooled Insurance Program.  Shareholder Andrea Schlafer successfully handled the trial and the appeal.  

The facts of the case were unusual. Petitioner, a full-time school nurse at the Hoboken Middle School, applied for a position as a student monitor for some extra income.  The service was known as the A.M. Care Program for students who needed to arrive early to school. Teachers and other staff who provided monitoring services received a stipend of $30 per day. Petitioner arrived on September 10, 2019 but claimed to have received very little instruction on her first day. The next day on September 11, 2019, she came to school early with the intention of participating in the A.M. Care Program.  However, she was informed that there was no need for more monitors that day.

The facts were sharply disputed at this point in the case.  Ms. Ryan-Wirth testified that upon entering the school she was greeted by the Principal, who was dressed in workout clothes. She claimed the Principal informed her that there was no need for any additional A.M. Care Program monitors that morning, but that she was welcome to participate in the Cardio Club. Ms. Ryan-Wirth maintained that she felt pressured to participate in the Cardio Club because the Principal was her boss.  She also claimed that she was never informed that she would not be paid for participation in the Cardio Club, which was next to the cafeteria where the A.M. Care Program was located. She said that she changed into gym clothes and then went into the Cardio Club.

Ms. Ryan-Wirth suffered serious back injuries on September 11, 2019, while pulling a car tire in a relay race, falling backwards on her rear end.  She was taken by ambulance to the hospital and ended up having major spine surgery.

Witnesses for the Board disputed petitioner’s version.  The Principal testified that he saw petitioner that morning wearing workout attire before participating in the Cardio Club. He told her that there were already enough monitors for the A.M. Care Program but that she could attend the Cardio Club if she wanted.  He added that petitioner would not be paid.  

According to the program website, the Cardio Club had a goal of infusing math into fitness activities for students. For example, the website described a recent session in which students ran outside and “calculated pace and clocked sprint times.” Some runs were mapped using GPS technology, and students could monitor their heart rate, according to the website. 

There were other witnesses who testified in this case.  Ms. Ryan-Wirth called a teacher to testify on her behalf, but that testimony harmed her case.  According to the teacher, it was petitioner who asked the teacher if she was going to participate in the Cardio Club, and petitioner said it looked like fun to her. This teacher also said that she thought Cardio Club was completely voluntary and would not be a paid activity.

On cross examination, petitioner admitted that she had a personal motive for wanting to participate in the Cardio Club.  She said that six weeks after giving birth, her doctor cleared her to exercise.  She went for walks and she went to the gym twice a week. After giving birth, she participated in a weight loss challenge to lose 30 pounds by Christmas for a cash prize.

Petitioner’s attorney maintained that petitioner was on school grounds on a work day when she was injured, and she felt pressured to participate in the Cardio Club.  The Judge of Compensation ruled against petitioner and held that petitioner’s injury did not arise from work.  Petitioner appealed.  The Appellate Court first reviewed the recent decision in Goulding where a cook volunteered to participate in a Family Fun Day and was injured while cooking for guests and employees. In that case the Supreme Court ruled that Ms. Goulding’s injury was not a recreational activity because she was doing the same work she always did during the week and because she did not participate in any of the games or activities.

The Appellate Division believed that Ms. Ryan-Wirth was not participating in a recreational activity under N.J.S.A. 34:15-7 because the Cardio Club was not really a social or recreational activity given its emphasis on learning for students.  But as to petitioner the Appellate Division held that the activity did not arise out of work. The Court said:

The record demonstrated that the petitioner is a school nurse not a teacher. Her job duties were to perform health screenings, treat illnesses, make referrals to primary care providers and monitor immunizations. She acknowledged she was not performing any of her duties as a school nurse at the Cardio Club…Petitioner was not monitoring, supervising, instructing or otherwise assisting the student participants.  Petitioner’s participation in the Cardio Club was limited to engaging in cardiovascular exercise. It was not a “regular incident of employment” as a school nurse within the meaning of N.J.S.A. 34:15-7.

The Appellate Court also endorsed the finding of the Judge of Compensation that petitioner’s motivation was very much a personal one in exercising and attempting to lose weight.  The Judge of Compensation had found as follows:  “She also said that she had a personal health goal to lose 30 pounds by Christmas, and by doing so she would earn $661.  She admitted that there was a personal stake in getting healthy, and that she enjoyed working out.  She went on to say that she worked out whenever she could, even engaging in 5k races while pregnant and after her pregnancy came to term . . . She thought Cardio Club would be ‘fun’ and chose to do it.”

The Court also made short shrift of petitioner’s argument that she was compelled to participate. The Appellate Court focused on the several lay witnesses who testified that the Cardio Club was voluntary, and employees were not reprimanded for not participating. The Court found that there was no hint of compulsion.

In the main this case is consistent with Goulding in finding that the overall activity itself  — the Cardio Club — was not a recreational or social activity since student learning was primary.  The Appellate Division seems to be saying that the Cardio Club was really about education – as to students and perhaps as to teachers who work with those students.  Similarly in Goulding, the Supreme Court found that there was a business purpose to the Saturday afternoon Family Fun Day for the employer.  That event also was not considered recreational or social under N.J.S.A. 34:15-7.  To win a recreational or social activity claim, the employee must prove a benefit to the employer beyond improvement of health and morale.  In both cases the court felt that this test did not apply because the over-arching purpose of each activity was not really recreational or social. 

Yet Ms. Goulding’s injury was found compensable, while Ms. Ryan-Wirth’s was not.  Neither was found to be participating in a recreational or social activity but one won, and one lost.  How do we square the two results? The Appellate Division concluded that one difference between the two cases was that the Ms. Goulding was doing her regular job as a cook at the Family Fun Day.  Ms. Ryan-Wirth was not doing her regular job as a school nurse. The Supreme Court went so far as to say that Ms. Goulding was actually working at the event.  Yet Ms. Goulding was not paid: she volunteered her time.  The differences are subtle, but it is clear that Ms. Ryan-Wirth lost because the court saw no connection between her activity and her job as a nurse and because of her personal interest in exercise.

In the end the case was not about the recreational or social activity statute but rather a straight analysis of the “arising out of work” standard.  Neither the Judge of Compensation nor the Appellate Division saw how petitioner’s injury arose from her work as a nurse or a monitor in the A.M. Care Program. The decision makes sense for the reasons stated by both the Judge of Compensation and the Appellate Division.

What is left of the statutory section 7 test? It seems to be much more restricted now to activities where there is no business purpose, such as an after-work softball game between employees of one company against another company.  That would be an example of a statutory recreational activity that would be found not compensable because there would be no way to argue that a softball game between two law firms, for example, would promote a benefit to the employer beyond improvement of health and morale.

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Cases involving parking lot injuries continue to generate divergent results in the Division of Workers’ Compensation and the Appellate Division.  Walker v. Saker Shop-Rite, No. A-2770-19 (App. Div. Sept. 7, 2021) illustrates this point yet again.

Ms. Walker, a 70-year-old employee, fell on December 11, 2018 while walking to her car in the leased supermarket parking lot after completing her shift.  Her injury was caused by stepping into a pothole.  A key fact was that petitioner admitted she parked in the side parking lot area rather than in the area designated for store employees out by the street.  She never felt it was safe to park by the street, so she chose to disregard the store’s instructions and park near an area where employees would smoke and drink coffee.  She said there was a “cabana type thing” on the side parking lot where employees gathered for a smoke or a cup of coffee.  That is where she chose to park for 25 years.  She said she mentioned her decision once to an assistant manager of the liquor department years ago. Petitioner said other employees also disregarded the directive to park near the street.

Saker Shop-Rite had a fairly common shopping center lease in that the store agreed to pay a common area maintenance fee to the landlord based on its pro-rata share of the entire shopping center for maintenance, insurance, snow removal and other items.  There were eight or ten other stores in the shopping center.

In 2018 Saker Shop-Rite agreed with the landlord to an amendment of the lease which would allow Saker to repave the parking lot and perform other traffic improvements.  Counsel for Saker Shop-Rite testified that this was done because the landlord did not want to make application to the Planning Board in Neptune.  Saker Shop-Rite agreed to apply to the Planning Board, make the repairs and then submit the cost of repais to the landlord for reimbursement.  Well after petitioner’s fall, the store got approval from the Planning Board and made the repairs.  This was a one-time event.

There was also testimony from the HR Manager about the designated parking area.  She said that new employees were advised to park in the designated area near the street.  The HR Manager also would tell employees that were observed parking in non-designated areas to park near the street in the designated area.  There was additional testimony that certain store employees were responsible for gathering shopping carts scattered in the parking lot.

Following the trial, the Judge of Compensation ruled that petitioner’s fall was not compensable because it occurred in an area not under the control of Saker Shop-Rite. This decision was consistent with the New Jersey premises rule.  The Judge noted that petitioner “consciously chose to ignore Saker’s directive to park in the designated area.”  Petitioner appealed.

The Appellate Division reversed in favor of petitioner, relying on a number of factors, many of which are common to all parking lot leases:

1. The Court said, “The accident occurred in the parking lot used by Saker’s customers, employees and vendors.” 
2. The Court added, “Petitioner was walking to her car in the parking lot used by Saker when she sustained her injury.”
3. In a surprising finding, the Court said, “We find inconsequential that petitioner, like other employees, chose to park in an area different from the area designated by Saker for employee parking.”  The Court excused petitioner’s conduct by observing that she was motivated by reasonable concerns for her own safety.
4. Interestingly, the Court seemed to base its decision largely on Livingstone v. Abraham & Straus, Inc., 111 N.J. 89 (1988).  In that case an employee of a department store in a Mall was required to park in a distant location designated for employees and was struck by a car while walking from the designated lot to the store.  The Court observed that the employer in this case was deemed to have control over the lot because it required petitioner and others to park in a distant location.  However, the Court failed to mention that Ms. Walker was not injured walking from the designated parking area.  She had never parked there for 25 years!
5. The Court further observed that the respondent used the side lot to allow its employees to smoke and gather for coffee.
6. The Court cited the common area maintenance charges, a standard in virtually every lease, as evidence of employer control. 
7. Lastly, the Court felt that the lease amendment allowing Saker Shop-Rite to repave the front parking lot was evidence of control of the lot, even though in the end the landlord had to pay for the work done in the lot.

This decision is unreported and therefore not binding on other courts.  Nonetheless, it adds to a puzzling array of contradictory decisions on parking lot injuries where the employer does not own the lot.  The problem with this decision is simply that it makes no sense to base “control” on the designated parking area near the street in this case.  This petitioner admitted she never parked there for 25 years.  The petitioner in Livingstone was walking from the designated area when struck by a car.  Ms. Walker was walking to an area where customers and some other employees parked in an undesignated area.

It seems that the Appellate Division decision is a far stretch.  “Employer control” was imputed to Saker Shop-Rite merely because some employees used the designated parking area – but none of them was filing a workers’ compensation claim for injuries. As to this petitioner, the Judge of Compensation’s reasoning was on point.  Ms. Walker was just walking to her car in an area used by customers and employees, like any other parking lot where an employer leases space for its employees and customers.  There was no added hazard as to her because she avoided the much longer walk by choosing to park close to the store.  As to the designated parking lot, the evidence seemed more like a request than a requirement since many employees apparently ignored the company policy with impunity.

Boilerplate lease issues, like common area maintenance charges, are a part of virtually every lease and clearly irrelevant to employer control.  Only one fact in this case was problematic for the employer. The lease agreement originally entered into in 1992 was amended in 2018 to permit Saker Shop-Rite to repave the front lot.  But that was done for the convenience of the landlord in avoiding the planning board application process.  It was a one-time repaving issue.  In the end, the landlord had to pay for the repairs anyway – and the repairs took place months after the accident.

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