Compensability

Sometimes tensions flare up between employees resulting in physical altercations with unexpected consequences.  A case in point is Bhut v. Aluminum Shapes, No. A-4652-17T1, 2019 N.J. Super. Unpub. LEXIS 1322 (App. Div. June 10, 2019).  The petitioner, Mr. Bhut, worked as a technician fixing manufacturing equipment.  He said that on May 21, 2017, he entered the employee locker room.  A co-worker, Mr. Stevens, had his feet up on a bench.  Bhut said he asked Stevens to move his legs but Stevens refused.   Bhut jumped over Stevens’s legs but his feet caught Stevens’s leg in the process.  According to Bhut Stevens threw a cup of soda at Bhut. 

Petitioner said he left the room
but came back a few minutes later to wash his hands.  He ran into Stevens outside the locker room
in a narrow walkway.  Stevens was holding
a pizza box.  Bhut testified that Stevens
pushed the pizza box at him as Bhut passed Stevens.  To keep the box away from him, Bhut swung his
arm toward Stevens and hit a hat on Stevens’s head.  Stevens then threw petitioner to the
floor.  Bhut maintained that he was not
trying to strike Stevens when he swung at him.

A completely different version of
facts was advanced by Stevens, who said that Bhut never asked him to remove his
feet from the bench.  Stevens said Bhut
pushed and kicked his legs off the bench. He claims that when he stood up,
petitioner stepped in front of him and caused the Coke drink to fall on
him.  Co-workers separated them.  Stevens said Bhut then returned a few minutes
later and Bhut came at him.  Stevens
side-stepped with the pizza box, and the next thing he knew Bhut struck him in
the back of the head.  Stevens said he
grabbed Bhut’s arm and the two men bounced off the locker and landed on the
floor with Stevens on top of Bhut. 
Stevens said he never pushed the pizza box onto Bhut.

There was no dispute that Bhut
injured his shoulder in the fall.  Bhut
filed a motion for medical and temporary disability benefits resulting in an
order for benefits in the amount of $15,583.54. 
The respondent appealed the decision of the Judge of Compensation.  Respondent argued that Bhut deliberately
struck Stevens leading to the fall, which caused the shoulder injury.   As such, respondent argued that this was in
the nature of a deliberate assault, disqualifying Bhut from recovery.

The Judge of Compensation found
that the altercation between the two men arose during the fulfillment of work
duties or doing something incidental to that, namely eating lunch on premises.  The Judge noted that there was no evidence of
hostilities between the two men outside work. 
Therefore there was no personal animus between the two men.  The Judge also rejected the argument that Bhut
intentionally assaulted Stevens.  She
said that neither man had any willful intent to injure the other.  She said, “The reactions of both Stevens and the petitioner were in response to
what each felt was aggressive behavior.” 
She found Mr. Bhut credible in his testimony that he did not intend to
strike Stevens when he pushed the pizza box away from himself.

The Appellate Division affirmed the decision below.  The Appellate Division viewed this as an injury arising from work tensions.  The Court deferred to the Judge of Compensation on her findings of credibility of the witnesses and her finding that there was no intent by either man to deliberately hurt the other.  She found that each man was trying to protect himself from the other.

This decision illustrates a number of important rules.  First, the trial judge is in the best position to assess credibility of witnesses in factual disputes.  Secondly, when a series of escalating tensions occurs, it is very difficult to find that one party deliberately assaulted the other party.  This was not a case where an employee decided to assault a co-employee without prior provocation or tensions.  The Judge viewed these facts as a series of two separate events minutes apart where each party saw the other as the aggressor and tried to defend himself.  The decision of the Judge of Compensation made good sense, and the Appellate Division properly deferred to the Judge below on determination of credibility.  Perhaps the case could have been viewed as one involving “horseplay.”  That rule says that the victim of horseplay is always covered for injuries, and the aggressor may also be covered under certain circumstances.

Thanks to Rick Rubenstein, Esq. for bringing this case to our attention.

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The idiopathic defense is not an easy one for employers to prevail on in New Jersey.  The basic concept is that the injury is not a result of any particular work effort and could happen anywhere, such as walking along a work corridor and suddenly feeling pain in one’s knee without falling or tripping.  But if work circumstances make the injury more likely, the defense is not available.  That was the holding in Quiles v. County of Warren, A-3938-17T3 (App. Div. February 13, 2019).

Officer James Quiles worked as a corrections officer for the County of Warren.  On March 14, 2014, he was climbing stairs at the County corrections facility to perform an inmate count when he felt a “pop and sharp pain” in his left knee. The County physician sent petitioner to an orthopedist following the incident, but the county denied the case.  So petitioner made an appointment with his own personal physician, Dr. Frank Capecci, who examined petitioner’s knee in April 2014.  Two days after seeing Dr. Capecci, petitioner went to the ER at Saint Clare’s Hospital with knee pain.  There was an entry in the record to the effect that petitioner had been running approximately 100 yards a few days earlier and suffered knee pain.

Petitioner continued to work for months, but in the Fall of 2014, Dr. Capecci recommended arthroscopic surgery to repair a left knee meniscal tear.  Three months later Dr. Capecci reconstructed petitioner’s ACL due to an incomplete ACL tear.

Petitioner filed a motion for medical and temporary disability benefits.  A video was shown at trial exhibiting petitioner climbing metal stairs while wearing heavy equipment and combat boots.  The equipment weighed about 25 pounds. Petitioner denied that he ever told the hospital that he had been running 100 yards.  Dr. Capecci also testified at trial, stating that in his view it was the stair climbing that caused the knee pathology.

The County’s medical expert, Dr. Richard Rosa, testified that there was no clear link between a torn ACL and just walking up steps.  There was some evidence that petitioner had complained of knee pain in 2008, but there was no evidence of any significant treatment.

The Judge of Compensation ruled in favor of petitioner on the ground that petitioner’s job required him to climb stairs while wearing 25 pounds of equipment.  As such he was performing a task that was stressful to his knees.  Further, the Judge did not credit the random entry in April 2014 to the effect that petitioner had been running 100 yards.  The Judge awarded medical treatment and temporary disability benefits to petitioner.  The County then appealed.

The Appellate Division noted that when an injury is due to a personal risk, such an injury is not compensable because there is no connection with employment.  Rather, it is idiopathic and not related to work.  The Court agreed with the Judge of Compensation that a key distinguishing feature in this case was that petitioner was wearing 25 pounds of equipment, making it harder to climb steps.  The Court gave more weight to the opinion of the treating physician, Dr. Capecci, because he was more familiar with the case.  The Court further discounted the one reference to running 100 yards, noting that petitioner exercised and participated in recreational activities until the March 14, 2014 stair climbing incident.  Those facts indicated that petitioner did not have a pre-existing knee problem.

The case is interesting because it underscores what employers need to win idiopathic claims.  In this case, the employer was at a huge disadvantage to begin with because petitioner was wearing 25 pounds while climbing stairs.  This was not someone who was just walking up or down stairs in light clothing.  The 25 pounds of weight removed the case from being an event that could have occurred anywhere.  The County also could not produce solid evidence of preexisting disability in 2008.

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There are two maxims in workers’ compensation that appear on their face to be contradictory.  The first is that the employer takes employees as the employer finds them.  The second is that employers are not responsible for idiopathic or purely personal conditions.  Both maxims generally pertain to workers who have preexisting conditions, and both maxims are valid.

An example of the first maxim might be a carpenter with long-standing diabetes who is at a construction site.  The carpenter jams her foot against a machine and feels pain in her great toe.  She mentions it to her supervisor at the time but continues to work.  Three days later she goes to the ER as her toe has become gangrenous.  She ends up having an amputation and files a workers’ compensation claim.  This claim would be considered compensable in New Jersey.  While 99% of workers would not have developed the severe symptoms of this carpenter by jamming one’s toe, the employer takes the employee with all his or her preexisting health risks.

An example of the second maxim might be the same carpenter with long-standing diabetes.  She has worn shoe inserts for many years due to flat feet and notices that her current inserts are uncomfortable and in need of replacement.   In walking around the office at work, reviewing plans, she feels pain from the deteriorating insert rubbing against her great toe.  She mentions it to her supervisor but continues to work.  Three days later she goes to the ER as her great toe has become gangrenous.  Again, the toe must be amputated.  But her employer successfully denies this case because all the carpenter was doing was walking at work, and the inciting cause of her toe injury was really an old shoe insert that needed to be replaced.

What both examples have in common is that the employee has a preexisting non-work-related condition.  But not everything that happens at work is work related.  For example, if a manager with a prior heart condition is in a meeting and suddenly has a heart attack while sitting at a conference table, the employer will deny this claim and will almost certainly prevail.  Similarly, if a firefighter is walking upstairs to meet with the Chief at work, and his knee locks up while ascending the stairs due to prior osteoarthritis in the knee, the employer will successfully deny this claim under the case of Meuse v. Egg Harbor Township Police Department, No. A-4553-90T5 (App. Div. May 6, 1992).  If the firefighter did not fall or strike the steps, this would be considered idiopathic and not causally related.

So the basic point to remember in navigating between these two competing maxims is that there must be some work-related event to make the claim compensable.  Just being at work or walking around at work is not enough.  It is safe to say that at a certain age, most workers have preexisting conditions that could impact work, although those conditions are generally unknown to the employer.

The key for employers for success in workers’ compensation is to take a detailed past medical history and to investigate the specific details of the alleged work accident.  Occupational physicians and treating physicians must inquire into prior health history, prior car accidents, second jobs, prior chiropractor treatment, recreational activities, and prior pain management.  Determining causation requires knowledge of the worker’s past health condition as well as an understanding of the precise mechanism of injury.

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George Washington, an employee of Runnells Center for Rehabilitation and Healthcare, left work on March 5, 2015 and drove his car to pick up lunch at a nearby restaurant.  Returning from lunch, his car struck a guardrail on a snow-covered access driveway owned by Runnells.  He completed an accident report at the scene, exited his vehicle, then slipped and fell, fracturing his ankle.

In April 2016, Washington sued Runnells, his employer, seeking compensatory damages.  Defendant Runnells surprisingly failed to argue that workers’ compensation was plaintiff’s exclusive remedy.  One cannot sue one’s employer in civil court except for rare exceptions.  Eventually Runnells amended its position in the case to argue that plaintiff could not sue the company in civil court, and the amendment was allowed.  That set the stage for an interesting decision.  Was Mr. Washington at work when he slipped and fell on an access road coming back from lunch?

The Superior Court held that plaintiff could not bring a civil suit against Runnells.  It did not matter that plaintiff was returning from a lunch break.  His car had reached the premises owned or controlled by his employer and he was technically in the course of employment when he was injured.  Therefore his sole remedy was workers’ compensation benefits, something Washington did not desire.

Washington relied on Acikgoz v. N.J. Tpk. Auth., 398 N.J. Super. 79 (App. Div. 2008).  He argued that his case was similar to this 2008 case.  In that case two vehicles collided on an access road owned by the New Jersey Turnpike Authority, and a civil case was allowed.  Both drivers worked for the Turnpike Authority. Acikgoz had completed his shift and was heading home.  Lowden, the other driver, was merely driving to work to pick up his paycheck.

The Court in Acikgoz allowed the civil law suit stemming because it held that Lowden was not in the course of his employment, as he was just picking up a paycheck. He was not there to work.  Further, the access road was open to the public.  The Court found that Lowden used the access road for “convenience” rather than for the benefit of his employer.

The Appellate Division concluded that Washington’s case was not the same as Acikgoz at all. The Appellate Court felt that Washington’s civil case was barred because plaintiff was technically at work when he was injured on the employer’s premises.  The court noted that the road he was on was not used by the public.  The Court also held that the civil case should be dismissed without prejudice pending a decision in the Division of Workers’ Compensation on the issue of compensability.  It is noteworthy that the Appellate Division in this case deferred to the Division of Workers’ Compensation for the final say on the application of the premises rule, predicting that the Division of Workers’ Compensation would be in agreement.  That has not been the trend in recent cases where the Superior Court has been faced with workers’ compensation compensability decisions, making their own final determination.

This case can be found at Washington v. Runnells Operating, LLC, A-3996-16T2 (App. Div. July 25, 2018).  It illustrates an important point in workers’ compensation.  The premises rule is a strict rule.  When one is on the premises to work, workers’ compensation laws apply.  It does not matter that one may be returning from lunch or returning from an off-premises shopping errand: the mere presence on the premises to renew work is enough to bring the worker within the protection of workers’ compensation.  In this case Washington fought hard to be outside workers’ compensation because the potential for damages is often far greater in the civil courts than in workers’ compensation.

Thanks to our friend, Ron Siegel, Esq. for bringing this interesting case to our attention.

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New Jersey public employees who are unable to work due to work accidents may apply for generous accidental disability pensions, providing approximately two thirds to 70% of pay with no federal taxes owed.  The standards for an accidental disability pension are rather similar to those in a workers’ compensation case, as is shown by the recent case of Bowser v. Board of Trustees, Police and Firemen’s Retirement System, A-0568-16T4 (App. Div. June 13, 2018).

The case involved correctional officer, Kristy Bowser, who suffered a fall on ice outside the Mercer County Correctional Center.  On the day of the injury Bowser parked her car on the employer’s property in an area reserved for corrections officers.  She worked one shift already and was then asked to work a second shift.  She asked a co-worker to cover for her while she retrieved feminine hygiene products from her car.  She slipped on black ice near the jail where she worked while walking to her car.  The Board of Trustees agreed that Bowser was totally and permanently disabled from working her job, that the disability was not caused by her own willful negligence, and that she was physically incapacitated from performing her usual duties or any other duty.  However, the Board disagreed that this arose from the direct performance of her duties and therefore the Board denied her claim.

The Appellate Division reversed in her favor.  It cited a prior case which said “Common sense dictates that the performance of an employee’s actual duties incorporates all activities engaged in by the employee in connection with his or her work, on the employer’s premises, from the formal beginning to the formal end of the workday.”

The Court added, “Just as restroom breaks at the work location during the workday ‘are necessary concomitants of an employee’s performance of his or her regularly assigned tasks,’ Kasper, 164 N.J. at 586 n.7, so was Bowser’s break to retrieve those necessary products. She remained on the MCCC premises, and had no intention of leaving.  She obtained relief from a fellow officer so she could briefly leave her post, as she would if she had headed straight to the restroom.  And, she was ‘on the clock,’ as she would be during a restroom break.  Consequently, her accident occurred ‘during and as a result of the performance of her regular or assigned duties.’”

For these reasons, the Appellate Division reversed the Board and awarded the officer her accidental disability pension.  Practitioners should note that accidental disability pensions are for work injuries only and are available to public employees.  Non-work medical conditions cannot be considered in an accidental disability application, unlike less generous ordinary disability pensions.  The standards for compensability in an accidental disability pension application for a public employee are similar to those in workers’ compensation.  Generally in workers’ compensation, on premises injuries are compensable unless the activity of the employee constitutes a deviation from employment or the injury is idiopathic.  Walking to one’s car during a break to retrieve something on the employer’s premises would be covered under New Jersey workers’ compensation law just as it was in this disability pension case.

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In a rather unique unreported case, the Appellate Division recently held that a drive to the normal work site can be considered compensable on the facts in Minter v. Mattson, A-1916-15T4 (App. Div. May 10, 2018).  The case involved a kitchen worker, Antoine Minter, who called out of work due to a heavy snow storm that started the night before.  Minter advised his supervisor, Dan Beggs, the executive chef, that he had to miss his morning shift since the morning bus to work was not running on account of the snow storm.

The food service in the dining hall was essential, so the dining director, John Lear, came up with an alternative plan to get Minter to work.  Lear contacted Beggs, who advised the dining supervisor, William Mattson, to pick up Minter on the way to work since both Minter and Mattson lived in the same town.  According to Minter’s testimony, Mattson told him that Beggs made clear that Minter had to come in during the snowstorm.   Minter testified that he thought he would be fired if he refused.  The two men had ridden together to work before.  Mattson picked up Minter while the storm was still heavy and roads were ice-packed.  Mattson lost control of the car he was driving, entering the path of an oncoming pick-up truck.  In the collision, Minter suffered two broken legs, fractured ribs, and a deep laceration to his left arm.

The case was heard in Superior Court because Minter tried to bring a civil suit against Mattson and his employers.  The outcome of the civil suit depended largely on whether the two men were in the course of their employment. The employers argued that Minter’s only remedy was workers’ compensation and moved to dismiss the civil law suit.  Later the workers’ compensation carrier for the employer, Manufacturers Alliance Insurance Company, was joined in the suit, and the compensation carrier argued that Minter was not in the course of his employment because he was just on his way to work.  The compensation carrier argued that travel to and from work is excluded under N.J.S.A. 34:15-36.  The special mission exception only applies to trips away from the employer’s place of business.

Minter argued that he was compelled to perform an activity that he would not have otherwise engaged in, since he had called out that morning.  He relied on the case of Lozano v. Frank Deluca Constr., 178 N.J. 513 (2004), which held that an otherwise excluded activity may be deemed compensable if the employer compels the activity and if the employee has a reasonable basis to believe that participation in the activity is compelled.

The compensation carrier argued that the principle of compulsion could not be applied to drives to and from work because attendance at work is compelled for all employees.  All employees are subject to termination if they fail to report to work. But the Appellate Division disagreed:  “In one sense, travel to and from work is always compelled.  Employers set work schedules and employees are generally expected to comply.  Those who do not comply usually risk losing their jobs.  But, the compulsion in Minter’s case was specific and exceptional.  Minter had already called out for the day. Thus, if he could establish that his employer compelled his non-work-related activity – the journey to work in a co-worker’s vehicle on a day he had already announced he would not work – the accident would be covered.”

The Appellate Division also noted that Minter could have argued that he was involved in a ride-sharing arrangement under N.J.S.A. 34:15-36.  That would have rendered his commute compensable.  However, his attorney never made that argument.  The Court emphasized that Minter’s belief that he might have been fired had he refused to come to work was objectively reasonable.  “In sum, Minter was injured in the course of his employment, despite the fact that he was not yet at his employer’s premises, because his employer had compelled his travel to work with a co-worker on a day he had already informed his employer he was not going to come in.”

This is the first Appellate Division level decision since the 1979 Amendments to the workers’ compensation law which has embraced the concept of compensability of a drive to a normal work site based on compulsion.  There is no reported case standing for this proposition.  The normal rule is that one is not at work until one arrives at premises owned or controlled by the employer.   Even though it is an unreported decision, this case is important because it charts new territory on compensability. The factual situation addressed in this case is one that does occur for employers with some frequency given severe weather conditions in the winter months.  It remains to be seen whether this logic is eventually embraced in a reported decision.

Our thanks to Ron Siegel, Esq. for bringing this case to our attention.

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“If you require it, you buy it.”  So said the Honorable Ray A. Farrington, former Supervising Judge of Compensation in Hackensack in reference to situations where an employer required an employee to perform a task that would otherwise be clearly not work related.  The concept of compulsion is an important one to understand in the law.  This concept must be contrasted with mere permission granted by an employer to perform some task or activity.

One of the best examples of compulsion comes from McCarthy v. Quest Intern. Co., 285 N.J. Super. 469 (App. Div. 1995), certif. denied, 134 N.J. 518 (1996).  In that case the petitioner was a bookkeeper for Quest International Corporation.  Her company purchased Unilever and scheduled a joint company picnic, sending out a memorandum stating that attendance was required.  The purpose of the picnic was to help employees in both companies get to know one another.

Ms. McCarthy advised the head of personnel that she did not wish to attend.  She was told that a salary deduction could be taken in that case.  She was also advised that she should set an example for other employees and attend.  The president of the company encouraged employees to socialize with other employees.

Based on this advice, McCarthy attended the joint company picnic.  Once there she was asked by the president if she was going to participate in the tug-of-war.  McCarthy took this as a mandate and then injured herself during the activity.  She filed a workers’ compensation claim and won.  Her employer appealed to the Appellate Division, arguing that McCarthy was just engaging in a recreational activity whose purpose was nothing more than promoting morale.   The Appellate Division agreed with the Judge of Compensation that the injury was compensable, relying on reasoning of Professor Arthur Larson for the principle that an employer has the power to enlarge one’s job duties by assigning tasks outside the usual scope of employment.  By directing the petitioner to perform these duties, the employer in effect bought the injury.

Years later the New Jersey Supreme Court expanded on this principle in Lozano v. Frank DeLuca Const., 178 N.J. 513 (2004).   In that case the petitioner, Mr. Lozano, was a skilled mason who could not drive.  After a long day of work on a large private property, the owner of the property asked Mr. Deluca, who was Mr. Lozano’s boss, if he wanted to take a ride with him on his large go-cart track.  Mr. DeLuca and the owner drove around the go-cart track.  Then Mr. DeLuca asked Mr. Lozano if he wanted to take a ride.  Mr. Lozano declined because he could not drive.  Mr. DeLuca repeated that Mr. Lozano should get in the go-cart and take it for a drive.  At this point Mr. Lozano got into the cart, and he proceeded to seriously injure himself by driving into a parked truck.  The Supreme Court said “that when an employer compels an employee to participate in an activity that ordinarily would be considered recreational or social in nature, the employer thereby renders that activity a work-related task as a matter of law.”

This principle make sense, but what if the employer is aware of the activity taking place and allows it, and the permitted activity leads to injury?  Is that compensable?  The Supreme Court said no in Jumpp v. City of Ventnor, 177 N.J. 470 (2003).   In that case the petitioner was a pumping station operator who drove around the city inspecting stations.  He would pass the town post-office during his drives from one station to the next.  He asked the city administrator for permission to pull off the main road and get his personal mail during his route.  The city administrator gave him that permission.  While walking in the post office parking lot, petitioner fell and fractured his pelvis.

Mr. Jumpp argued that he had permission to make a slight deviation from his route to get his mail.  The Supreme Court acknowledged that petitioner had permission to do what he did but felt that this activity constituted a major deviation from work.  It said it made no difference whether the employer allowed the activity to take place:  the act of getting one’s personal mail constituted a major deviation from work.  Permission was not the same as direction.

So too in Sarzillo v. Turner Const. Co., 101 N.J. 114 (1985), a petitioner had permission to play a paddle ball game every day on the construction site during breaks.  Mr. Sarzillo was injured while playing the game.  The Court said that permission did not change the fact that the activity promoted nothing more than morale.  Under N.J.S.A. 34:15-7, activities whose primary purpose is to promote morale or health are not compensable.

Employers must be careful to consider whether they have directed or required an activity or whether they have merely permitted something to occur.  If an employer does not want to expand the job duties, the employer should make it clear in memoranda that the activity – whether it is a holiday party, picnic or bowling night — is not required.

This lesson emerged in Rose v. Joey Sinopoli’s Haircutters, No. A-0049-05T1 (App. Div. August 14, 2006), certif. denied, 189 N.J. 426 (2007).  The petitioner suffered a serious injury leaving a coffee shop on the way to work.  She always stopped to purchase coffee for co-employees and understood that this was part of her job.  She was reimbursed for the cost.   Her employer testified that if she did not do this, someone else would have had to do so.   Again, the decision makes sense because the employee felt a sense of compulsion and employer direction in purchasing coffee each morning.   Had the employer not made this a requirement, the injury would not have been held compensable.

In a surprising but unreported decision, the Appellate Division affirmed an award to a police officer who fell in the municipal parking lot on December 9, 2011 on a day when he was not supposed to be at work.  The officer said he came to work to collect his paycheck and also to check his court schedule while he was there.  The case is Grawehr v. Township of East Hanover, A-1686-15T3 (App. Div. June 29, 2017).

The accident involved a slip and fall on ice which led to shoulder surgery.  The Township denied the claim since petitioner was not working that day, and no one asked him to come to work.  The petitioner admitted that he was coming to work to get his paycheck, but he said that he also wanted to check his personal folder for any new subpoenas for scheduled court dates.  There had been problems with police officers missing scheduled appearances due to a recent merger with the Township of Hanover. A township Lieutenant testified that it was not uncommon for the more diligent officers to come in on their days off to check on their court files.

Even though Officer Grawehr never failed to appear for court and had not been disciplined (unlike others) for failing to come to court, and even though the next court date was not until December 22, the Judge of Compensation found for petitioner and awarded petitioner 27.5% or $41,187 for permanency and medical expenses. The Appellate Division affirmed. The theory of compensability in this case was the existence of a mutual benefit to the Township and the employee by these impromptu visits to the police department on days off.  The Township denied that there was any benefit to it at all.

The “mutual benefit” theory has been questioned as recently as May 1, 2017 in Liu v. 4D Security Solutions, Inc., A-3591-15T1 (App. Div. May 1, 2017).  In that similarly unpublished case a different appellate panel found that the mutual benefit doctrine did not survive the 1980 amendments.  That appellate panel rejected the doctrine completely just one month before this decision.  The decision in Grawehr makes no mention of the Liu decision.

In Grawehr, the Appellate Division struggled mightily to find case law supporting the existence of a mutual benefit doctrine.  The only case it cited was a pre-1980 case called Salierno v. Micro Stamping Co., 136 N.J. Super. 172 (App. Div. 1975), where a heart attack experienced by a worker during contract negotiations on behalf of his union was found to be compensable.   That case is not really a mutual benefit decision, and it would likely not meet the current law dealing with the requirements for compensability of heart attacks.  In essence, the panel in Grawehr assumed the existence of the mutual benefit doctrine even though the issue was whether it exists at all.

It is clear that an injury that occurs when an employee comes into work simply to pick up a paycheck is not compensable.  Miller v. Saker Shoprite, A-3746-13T2 (App. Div. November 13, 2015).  In this practitioner’s opinion, the Grawehr decision is open to criticism because the appellate panel never really found a case that supported the existence post 1980 of the mutual benefit doctrine in New Jersey.  Interestingly, neither could the appellate panel in Liu cited above.  This practitioner is aware of only two reported post-1980 decisions where the court based its decision on the existence of the mutual benefit doctrine.  One case was Daus v. Marble, 270 N.J. Super. 241 (App. Div. 1994) and the other was Mahon v. Reilly’s Radio Cabs, Inc., 211 N.J. Super. 28 (App. Div. 1986).  These cases were not mentioned in this matter or in Liu.  We will need clarification from a future reported appellate division panel or the Supreme Court on whether the mutual benefit doctrine, as applied to trips to and from work, still exists – or exists in any other context.

This case illustrates the problem inherent in the mutual benefit doctrine when it is applied to cases involving trips to work on non-work days.  The doctrine can be interpreted so broadly that it can create a massive end-around to the requirement that all accidents must meet the test of “in the course of employment.”  Anyone who comes into work to retrieve something and falls at work after hours or on days off can argue that there was a mutual benefit conferred on the employer by coming to work.  Do both parties have to agree that there was a benefit?  The township said there was no benefit in this case.  It is an extremely subjective test.  The obvious reason the claimant was coming to work in this case was to pick up his paycheck.  But that activity alone is not compensable.  Further, the next court date was 13 days away, so the decision in favor of compensability makes very little sense under any analysis.

The recent case of Benimadho v. Somerville Borough Fire Department, A-2351-15T3 (App. Div. April 10, 2017) is fascinating because it draws a line between horseplay, which is ordinarily compensable, and conduct that goes beyond what the employer approves when an employee is away from the normal place of employment.

The case involved a serious brain injury to a young man, Jamie Benimadho, a volunteer firefighter with the Somerville Fire Department (SFD).  Mr. Benimadho, the petitioner, drove to the Somerset County Emergency Services Training Academy (SCESTA) for a scheduled test, along with other volunteer firefighters.  When he got there, he saw a fellow volunteer, Darin Watkins, putting Watkins’ cousin, Kenneth Wise, in a headlock from which Wise could not get free.  Petitioner knew that Watkins frequently wrestled and “roughhoused” with his peers, including his cousin.  Watkins was actually not punching his cousin or slamming him into objects, but petitioner considered this a “violent altercation,” not horseplay.   Petitioner approached Watkins and his cousin, Wise, and told Watkins to “stop it.”  Petitioner then pushed Watkins off his cousin and then grabbed Watkins around the waist.

At this point Watkins released his cousin and then proceeded to put petitioner in a headlock.  Watkins asked petitioner whether he was done.  Petitioner nodded and said, “I’m good,” and petitioner lightly punched Watkins in the ribs to signify submission.  Watkins released petitioner, but when petitioner stood up, he seemed to pass out and then fell backward.  Watkins tried to grab petitioner’s waist to hold him up, but he failed to stop petitioner’s fall onto asphalt.   Petitioner suffered a skull fracture, subarachnoid hemorrhage, subdural hemorrhage, and a traumatic brain injury.

Petitioner testified at trial that he intervened between the two cousins “because like being a firefighter, like, that’s what you’re supposed to do, protect the citizens.” He also said he was trying to enforce the SCESTA rule against horseplay.  Another volunteer firefighter, Cody Hresan, testified that he did not consider Watkins’ headlock with his cousin to be bullying but did feel it was too aggressive.  Hresan also told Watkins to “calm down.”

Petitioner filed for workers’ compensation and the Judge of Compensation ruled the injury not compensable.  The court noted that the SCESTA Rules and Regulations contain a prohibition against “abusive, profane or obscene language or behavior, [and] horseplay or any disturbance during class.”  The SFD mission statement said that the goal of the organization was to protect the lives and property of the citizens of Somerville.

Petitioner argued that he felt that the mission statement impelled him to stop bullying and felt that he did not need permission from his employer to intervene in a situation like this.  He admitted that no one told him to intervene and that he had broken up fights before joining the SFD.

Another volunteer firefighter, Joseph Stitley, testified that he had not been taught that breaking up fights was part of the job.  The mother of Mr. Wise, who had been first placed in a headlock, testified that petitioner tried to save her son’s life.  Several other witnesses on the scene thought the whole affair was horseplay.

The Judge reasoned that petitioner’s activities were not the type that he was assigned or directed to engage in by the fire company.  The Judge noted that the New Jersey Statute at N.J.S.A. 34:15-36 provides that when one is away from the employer’s place of employment, an employee is only covered when he or she is engaged in the direct performance of duties assigned by the employer.  The Judge concluded that petitioner’s intervention in what he perceived was a bullying incident was not an activity assigned or directed by the employer.  Petitioner testified that he has intervened in the past in non-work situations to prevent bullying.  He himself did not present this as a horseplay case, although others on the scene viewed it as horseplay.

On appeal, the Court studied the rule in Jumpp v. City of Ventnor, 351 N.J. Super. 44 (App. Div. 2002), aff’d, 177 N.J. 470 (2003).  In that case the Court noted that someone who engages in a personal errand or activity (picking up personal mail along his work route) is not engaged in the direct performance of duties assigned by the employer.  The Appellate Division said:

There was nothing in either the SCESTA rules or the SFD mission statement that authorized, let alone directed, petitioner to intervene in a physical altercation, even if he perceived the altercation as a bullying incident.  The testimony provided adequate support for the finding that petitioner was engaged in a ‘personal activity’ rather than ‘in the direct performance of duties assigned or directed by the employer.

The Court affirmed the dismissal of this case.  The case is interesting because it focused on the language in Section 36 for what constitutes work when one is away from the normal work site.  It is unclear whether the Court was saying that the horseplay rule does not apply when one is away from the normal work site.  In New Jersey, horseplay is compensable as to the victim.  N.J.S.A. 34:15-7.1. That section reads:

An accident to an employee causing his injury or death, suffered while engaged in his employment but resulting from horseplay or skylarking on the part of a fellow employee, not instigated or taken part in by the employee who suffers the accident, shall be construed to have arisen out of and in the course of employment of such employee and shall be compensable under the act. . . .

The Appellate Division decision did not address the horseplay statute.   If the Court had viewed Watkins’ activity as horseplay, the conclusion might have been different.  The Judge of Compensation put emphasis on the fact that petitioner had no duty to intervene in the activities that Watkins and Wise were engaged in. She also emphasized that their activity was contrary to the Department Rules. In other words, she focused on the language of Section 36 dealing with activity away from the normal place of employment.  There was really no discussion of whether this case fits the horseplay statute, namely whether petitioner engaged in conduct “not instigated or taken part in by the employee who suffers the accident.”   Even if the case had been viewed as horseplay, petitioner would have had to deal with the above language in that he did take part in the activity by intervening in an altercation between cousins.

This decision raises an interesting question:  would the outcome have been the same if these events had taken place at the Somerville Borough Fire Department instead of an off-site training academy?  The language focused on by the Appellate Division in Section 36 regarding “direct performance of duties assigned or directed by the employer” only comes into play only because the petitioner was away from his normal work site.  Viewed as an “assigned duties” case, the decision is undoubtedly correct because petitioner had no duty to intervene, and company rules prohibited horseplay.  Although the case is unreported, it is important because it would seem to suggest that the horseplay provision does not apply to off-premises activities because when one engages in horseplay, one is never engaged in the direct performance of assigned duties.

Sometimes activities that would otherwise be non-compensable are covered under the Mutual Benefit Doctrine.  That doctrine covers certain activities when there is “a clear and substantial benefit” to the employer by reason of the permitted activity.  Daus v. Marble, 270 N.J. Super. 241 (App. Div. 1994).  An example might be an injury to an employee when one employee spills hot coffee on another employee during an impromptu on-premises coffee break.  Employees who gather around the coffee machine during work hours to exchange personal news or to joke around are not technically working, but this sort of coffee break provides a mutual benefit to both the employer and the employee.  Therefore an incident involving a coffee burn to an employee would be covered.

An older case Saintsing v. Steinbach Company, 1 N.J. Super. 259 (App. Div. 1949) illustrates the point.  In that case the personnel director proposed to the store manager a vaccination service for employees to guard against a smallpox epidemic which had begun in New York City.  A notice was delivered to all employees stating, “On April 22, 1947, we will provide free inoculation to all those who choose to be immunized against smallpox.  We are sure that everyone is aware of the current spread of smallpox and we strongly urge that you take advantage of this service, which we are glad to provide in the interest of your health.” 

Most employees were vaccinated but petitioner, Mary Saintsing, developed a bad reaction which caused temporary and permanent disability.  She brought a workers’ compensation claim.  The carrier denied the claim and argued that this program was voluntary.  Not everyone agreed to be inoculated.  The personnel director testified on behalf of the injured employee that the company wanted to avoid absenteeism because that would disrupt its business. The court reviewed conflicting decisions in other states and held, “The employees, although not compelled, were strongly urged to submit to the vaccination and, in natural response, most of them did. . . . We have concluded that the activity was mutually beneficial, that the risk was reasonably incident to the employment and that the petitioner’s injury resulted from an untoward event or accident arising out of and in the course of her employment. . . “ 

New Jersey later amended its statute in 1979 to make clear that recreational and health activities whose intended purpose is to promote health and morale (and not something more than health and morale) are not compensable.  But that provision of the statute in N.J.S.A. 34:15-7 did not invalidate the Mutual Benefit Doctrine.  If the employer derives some benefit beyond mere health and morale, the social or recreational activity is compensable.

So for example in High v. Rose, 2011 N.J. Super. Unpub. LEXIS 2026 (App. Div. July 26, 2011), the Court affirmed a decision of a Judge of Compensation finding that an accident in a parking lot long after school ended was compensable based on a mutual benefit.  The plaintiff, High, was employed at Montclair Kimberley Academy as a nurse.  She remained late at school to assist another teacher for an hour and a half.  The defendant, Rose, remained late at school after teaching her class and then completing her instructional work. Then at 4:15 she picked up her son who attended the school’s pre-kindergarten after-school care program.  Both employees of the Academy backed their cars out at the same time and their cars struck each other, causing injuries to plaintiff High.

The plaintiff argued that Rose was not in the course of her employment because she stayed after school primarily to pick up her child from the pre-kindergarten program.  The plaintiff clearly wanted to proceed in a civil suit against Rose, but the carrier for Rose argued that the plaintiff’s only remedy was workers’ compensation.  The Judge of Compensation held that just because Rose stayed late to pick up her child from the pre-kindergarten program did not remove her from employment.  Having the child in the program at the school provided a mutual benefit to the school and the employee.  Since High and Rose were still on school premises when the accident happened, the Judge of Compensation found the accident to be compensable.  The Appellate Division agreed and barred High’s civil suit against Rose.  The Court noted, “The child was attending the after-school program so that defendant could complete her teaching duties.”

The Mutual Benefit Doctrine, like its close cousin, the Comfort Doctrine, is not written into the New Jersey statute.  These doctrines exist in case law handed down over the years.  Without these doctrines many claims would be found non-compensable.  For example, employees need to use the restrooms during the day.  If a slip and fall occurs in a restroom, it might not be covered without the Personal Comfort Doctrine because technically the employee is not working.  These doctrines make sense because they avoid a hyper-technical look at every activity which employees engage in during the course of a day. The Personal Comfort Doctrine embraces activities that are basic human needs, and the Mutual Benefit Doctrine embraces activities that benefit the employer and employee equally. However, the Mutual Benefit Doctrine has its statutory boundaries as noted above under Section 7 such that an activity whose purpose is just to improve health and morale is not compensable.