Compensability

In a surprising decision from the New Jersey Supreme Court, an award to Cheryl Hersh, an employee of Morris County, was reversed on April 1, 2014.

Ms. Hersh was employed by the County since September 2002 as a Senior Clerk in the Board of Elections.  In 2004 the County assigned her free parking at a private garage on Cattano Avenue located about two blocks from the Administration Building where she worked.  The garage contained several hundred parking spaces of which the County rented about 65 for its employees.  Hersh was unable to park next to the county building in the county parking lot because she lacked sufficient seniority.  Instead, she was permitted to park at the Cattano Garage but she was not given an assigned space.

On January 29, 2010, Hersh parked her car in the Cattano Garage, exited on Cattano Avenue, and began walking one-half block to Washington Street.  As she crossed Washington Street, she was struck by a motor vehicle that ran a red light. Hersh brought a workers’ compensation claim and prevailed in the Division of Workers’ Compensation.  The Appellate Division affirmed her award.  The County appealed.

The County argued that this case was different from the decision in Livingstone v. Abraham & Strauss, Inc., 111 N.J. 89 (1989).  In that case, the employer required its employees to park in a distant location of a mall parking lot so that the customers of the store would have access to the lot closest to the store. The petitioner was injured when she was struck by a vehicle walking to the store, and the Supreme Court found that injury compensable.   Here the County argued that there was no real benefit to the employer in having employees park in the Cattano Garage.

The Supreme Court agreed with the County in finding that two factors distinguished the Livingstone case that were missing from Ms. Hersh’s case:

Of chief concern in Livingstone, supra, was the employer-derived benefit that was created by dictating that employees park at the far end of the lot.  Ibid.  The employer’s business benefit, along with the added hazard employees were forced to endure by the employer while they walked through the parking lot, made the injury compensable. Ibid.

The Court found that the Cattano Garage was not part of the premises of the County, and significantly, the County did not control the garage.  It was neither owned nor maintained by the County.  “The County derived no direct business interest from paying for employees to park in the Cattano Garage.  Most importantly, the accident occurred on a public street not under the control of the County.  In walking a few blocks from the Cattano Garage to her workplace, Hersh did not assume any special or additional hazard.”

The case is significant because on the surface, the facts appeared to be on all fours with Livingstone as noted by the Judge of Compensation and the Appellate Division.  The Supreme Court seemed to suggest that there must be a special benefit to the employer or additional hazard for an accident of this nature to be found compensable.  The tenor of the case is that parking privileges were a perquisite, much like having a company-paid car, but these facts do not make the injury compensable.

This case can be found at Hersh v. County of Morris, A-59-12, (April 1, 2014).

The premises rule in New Jersey states that employees are covered when they are on property owned or controlled by the employer.  How far can this be stretched?  When a car accident occurs on a public street with only part of the car touching the employer’s premises, is an injury still covered under the New Jersey Workers’ Compensation Act?

This precise issue was posed in Burdette v. Harrah’s Atlantic City, A-4797-12T1 (App. Div. January 17, 2014).  A casino dealer, Carla Burdette, finished her shift and proceeded to her Ford Explorer in the Harrah’s parking yard.  She then drove her vehicle along an internal Harrah’s driveway, passed through a Harrah’s security gate, and made a lawful left turn onto MGM Mirage Boulevard, a three lane public highway.

At the very same time, another vehicle was proceeding northwest and collided with Burdette’s vehicle. The impact occurred on MGM Mirage Boulevard, but a portion of the rear of Burdette’s car was positioned over the Harrah’s driveway apron.

Burdette filed a claim petition seeking workers’ compensation benefits.  Harrah’s rejected the claim and asserted that the impact of the accident occurred on a public street, not on Harrah’s property.  The Judge of Compensation noted that about one foot of Burdette’s car was still in the area of the parking lot controlled by Harrah’s and therefore found the case to be compensable.  Harrah’s appealed.

The Appellate Division reviewed the premises rule and observed that the key questions were those of where the accident occurs and whether the employer controls the location of the accident.  The court said that the workers’ compensation act must be liberally construed in favor of coverage for the protection of employees.

The circumstances of the present case plainly reveal that Burdette never fully left her employer’s premises.  Although her vehicle was in the midst of navigating a left turn onto a public thoroughfare, the exact spot where Burdette suffered injuries was neither remote from, nor unconnected to, her work premises.  We reject Harrah’s ultra-rigid approach that focuses only on the colliding vehicles’ point of impact and the front seat location of Burdette in her Explorer. Instead, applying the common sense and the policies inherent in the Act, we subscribe to the judge of compensation’s viewpoint that the injuries suffered here were a result of Burdette’s firm attachment to her place of employment, albeit while on her way home.

This case illustrates that any established rule can seem capricious at the margins.  When it comes to the premises rule, courts will interpret the rule liberally in favor of coverage given the social policy behind our workers’ compensation laws.

Saul Liebman was living alone after the recent death of his wife in September 2008.  At the time he was 81 years old.  His daughter made inquiries to find someone who could move into her father’s home and take care of him, including cooking meals and assisting in daily activities. Myroslava Kotsovska, a 59-year-old Ukrainian woman, was referred to Liebman.  She had performed similar services to a New Jersey family in the past.

Kotsovska met with Liebman and the parties agreed that she would move in and work seven days a week for $100 per day in cash doing laundry, cooking, light housekeeping, and assisting with general tasks.  There was no formal discussion of her employment status, specifically whether she would be considered an independent contractor.  The working arrangement began on October 21, 2008.

On December 8, 2008, Liebman and Kotsovska ran some errands and stopped at the Millburn Diner for lunch. Kotsovska exited the car and stood on the sidewalk while Liebman pulled into the parking space in front of her.  Liebman then accidentally pressed the accelerator and the car drove over the parking block and onto the sidewalk, crashing into Kotsovska, and pinning her against a low wall.  The car severed her leg below the knee, leading to her death within an hour.

The estate of Kotsovska filed a wrongful death action against Liebman in Superior Court.  Liebman answered and contended that the exclusive jurisdiction was in the Division of Workers’ Compensation since Kotsovska was his employee.  The estate argued that the decedent was an independent contractor.  The homeowner’s carrier acknowledged the existence of workers’ compensation coverage and notice of the claim and agreed that the accident arose from the decedent’s employment.  It also agreed not to raise a statute of limitations defense although no workers’ compensation claim had been timely filed.

The trial judge refused to send the case to the Division of Workers’ Compensation, and a jury determined that the decedent was an independent contractor, awarding the estate $300,000 for decedent’s pain and suffering and $225,000 for her wrongful death.  Liebman appealed and the Appellate Division reversed in a published decision at Estate of Myroslava Kotsovska v. Saul Liebman, A-5512-11T4, (App. Div. December 26, 2013).   The court held, “We conclude that this matter should have been transferred to the Division (Workers’ Compensation) for determination of decedent’s employment status.  The Court in Kristiansen held that, although the Superior Court and the Division have concurrent jurisdiction to decide an exclusivity defense, primary jurisdiction is in the Division where, as here, ‘no issue has been raised that the Division cannot decide in a manner that is binding on all the interested parties.’” (citing Kristiansen v. Morgan, 153 N.J. 298 (1998) modified on other grounds, 158 N.J. 681 (1999).

The Appellate Division made clear that the Division of Workers’ Compensation has primary jurisdiction, not merely concurrent jurisdiction.  It said that the Division of Workers’ Compensation is the best forum to decide employment issues and compensability issues.  The court said, “Accordingly, we hold that because Liebman’s exclusivity defense turned on whether decedent was his employee or an independent contractor, an issue over which the Division could enter a binding judgment, and one which the Division was best suited ‘by virtue of its statutory status, administrative competence and regulatory expertise to adjudicate,’. . . (citations omitted) the trial court should have transferred the case to the Division.”

The next question the court focused on was whether it should reverse the finding of liability on the part of Liebman or allow the jury verdict to stand given that the Superior Court was acknowledged to have concurrent jurisdiction.  In this case, the court found that the instructions to the jury on the factors that determine employee status were vague and insufficient.  The court reversed the judgment on liability only and remanded the matter to the Division of Workers’ Compensation to determine whether the decedent was Liebman’s employee or performed services for him as an independent contractor.  If the Division of Workers’ Compensation should find Kotsovska to be an employee, the verdict would be thrown out completely.

Practitioners should study this case.  First, it is a published decision and will be cited by other courts.  Secondly, it is really the first reported decision in New Jersey to emphasize that not only does the Division of Workers’ Compensation have concurrent jurisdiction with the Superior Court in matters of compensability and employment, but it has primary jurisdiction.

What if the conduct of an employee during the course of employment is found to be so reckless as to be potentially criminal? Does that permit an injured co-employee to sue his or her fellow employee in civil court for intentional harm?  That was the issue addressed in Morales v. Christopher S. Schneider, A-0862-12T4 (App. Div. December 16, 2013).

Luciano Morales was injured on December 31, 2009 in the course of his employment.  He was a passenger in a vehicle driven by Christopher Schneider, who was driving a construction truck southbound on Rivervale Road in River Vale, N.J.  It was snowing at the time, and both men were on their way to the company’s place of business to meet other contractors in order to perform snowplowing services for clients.

While driving the truck, Schneider crossed the double yellow line and entered the northbound lane on Rivervale Road, which was a two lane road.  He drove for more than a full block in the northbound lane.  A truck travelling lawfully in the southbound lane began to make a left turn onto a local side street. Schneider veered left to avoid that vehicle, lost control of his truck, left the roadway and hit a utility pole and tree.  Morales was seriously injured in the accident and received workers’ compensation benefits.

Schneider was given motor vehicle summonses for reckless driving, failing to keep right, improper passing, and he was also charged by the Bergen County Prosecutor with fourth-degree assault by auto for “causing serious bodily injury to . . . Morales by recklessly driving.”  Schneider was admitted into the pre-trial intervention program and pled guilty to the motor vehicle summons for reckless driving.

Morales brought a civil suit against Schneider, who contended that the suit should be barred by the exclusive remedy provision in the New Jersey Workers’ Compensation Act. Morales countered that a co-employee should not be protected where the conduct is “outrageous and egregious.”

The trial judge dismissed Morales’s law suit, and the Appellate Division affirmed.  It relied on an important decision by the New Jersey Supreme Court in 2012 entitled Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2012).  The court said, “Most recently, in Van Dunk, the Court held that the Act’s exclusivity bar applied where the workplace accident produced an OSHA violation for a ‘willful’ violation of OSHA safety rules.”

Thus, in addition to violations of safety regulations or failure to follow good safety practice, an intentional wrong must be accompanied by something more, typically deception, affirmative acts that defeat safety devices, or a willful failure to remedy past violations.

The court concluded, “While it might be said that Schneider ignored various safety precautions and statutory provisions, and in doing so created a greater risk of injury to plaintiff — conduct that clearly cannot be condoned — we are convinced it does not amount to an intentional wrong that allows plaintiff to avoid the workers’ compensation bar.”

The case shows that the high standard in New Jersey for screening intentional harm law suits applies to both suits against employers and co-employees, even where the co-employee acts in a fashion that could subject him to criminal negligence charges.

Mary Patterson worked for The Atlantic Club as a personal trainer, training clients from 6:00-7:00 a.m., from 8:00-11:00 a.m., and from 12:00-3:00 p.m.  She was injured at 11:15 a.m. when she tripped and fell, breaking her wrist on the premises.  The Atlantic Club denied the claim asserting that she was not in the course of her employment at that specific point in time.

There were various facts in dispute, but the parties agreed that Patterson’s 11:00 a.m. client did not show up for her training session.  Further, the parties agreed that Patterson was not wearing her uniform at the time of her injury, namely a black trainer shirt.  She said she had taken it off due to the heat.  Patterson claimed that she was returning exercise bands which she planned to use for her 11:00 a.m. client when she tripped and fell. Her employer argued that she was working out when she was injured.

There was conflicting evidence on whether petitioner punched out at 11:00 a.m. A time card entered into evidence showed that Patterson punched out at 11:00 a.m.  However, petitioner’s former manager testified that he altered Patterson’s time card, at the employer’s request, to indicate that she had punched out and was not working at the time of her injury.  The Judge of Compensation found this evidence to be unreliable for a number of reasons.  First, the former manager had been fired some time after this event for submitting time cards for compensation for personal training sessions with a person who was deceased. Further, the time card was shown not to have been changed for about two weeks.

The general manager of the health club, Kathy Guibord, testified that Patterson may not have punched out at the time of the accident.  However, petitioner told Guibord that she was working out on her own and was not training anyone when she was injured. Guibord noticed that petitioner was in her workout clothes at the time of her injury.

The Judge of Compensation viewed the issue of punching out on the time card as insignificant.  He instead focused on the detail that petitioner was out of her uniform.  “[S]he changed out of her uniform and into her personal clothes because she was on her personal time and no longer working.” The Judge of Compensation dismissed the case, holding that petitioner failed to prove her injury occurred during the course of work.

The Appellate Division affirmed the dismissal of this case:

Patterson has simply not met her burden. . . . She was not wearing the required uniform while she alleged she was waiting for her client.  Guibord testified Patterson told her immediately after the incident that she had been working out on her own when she fell and broke her wrist.  Given the judge’s credibility findings, which we review deferentially, his ultimate conclusion does not appear to be arbitrary, capricious, or unreasonable.

Petitioner made an interesting argument on appeal.  She maintained that there was a mutual benefit to her employer in her working out even if it was for herself.  She contended that employees were affirmatively encouraged to work out at the club in order to increase the employer’s business.  Unfortunately for petitioner, this issue had not been raised in the trial in the Division of Workers’ Compensation.  Seldom will an appeals court address an issue not raised in the original trial. Furthermore, the witnesses Patterson relied on to establish this point were found by the Judge of Compensation to be lacking in credibility.

This case is useful for practitioners in that it shows that not all injuries at work are compensable.  The holding here was that the activity which led to petitioner’s injury was personal and not part of her job duties.  The case can be found at Patterson v. The Atlantic Club, A-0657-12T1 (App. Div. July 11, 2013).

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Trainer Injured at Health Club Shed Her Employee Status and Was Not Covered at the Time of Her Fall

Caitlin Wilson was injured on September 8, 2011 when she dropped a heavy frame on her foot while in the employment of respondent Studio I, Inc. She received $420 per week from September 14, 2011 to October 24, 2011 in temporary disability benefits.  Her doctor advised that she could work light duty at the end of this period, but she did not return to work at this time.  She did return part-time from November 15 – 26, 2011.  She claims the respondent then told her not to return to work until she could work full-time.  Petitioner was paid $339.43 in temporary disability benefits for the period she worked part-time.

Respondent claimed that petitioner was authorized to return to work with restrictions on October 14, 2011.  It tried to accommodate the restrictions which actually increased over the next two months, but petitioner either did not arrive at work, arrived late or did not perform her job even with accommodations.  Respondent further claimed that petitioner stopped coming to work entirely without producing any medical note.  She resigned from the company on February 9, 2012 because she was moving. It was undisputed that petitioner returned to work on February 10, 2012.

On January 13, 2012 petitioner filed a motion for medical and temporary disability benefits.  She argued that her wage was miscalculated and that she was entitled to temporary disability benefits from October 25, 2011 to November 14, 2011.  She maintained that her temporary disability benefits should have continued until February 3, 2012.   She also argued that when she filed the motion in January, 2012, she was not working at that time and was, in her view, entitled to temporary disability benefits.  Therefore, in her view, it did not matter that she later returned to work on February 10, 2012. She argued that she was entitled to a decision on her motion at that time.

The Judge of Compensation, Honorable Philip A. Tornetta, denied the motion because the claim concerned past periods of temporary disability and was contested by respondent.  The Judge relied on N.J.A.C. 12:235-3.2(a).

Motions for temporary disability and/or medical benefits shall evidence that petitioner is currently temporarily totally disabled and/or in need of current medical treatment.  Where only past periods of temporary total disability and/or medical expenses are claimed by petitioner, such issues should be presented at pretrial for resolution or trial and not by motion under this section.

The Appellate Division reviewed the appeal and affirmed Judge Tornetta’s decision.  It said, “in this matter an incorrect determination of past temporary benefits can be remedied by a retroactive award of benefits.  Thus, this appeal is interlocutory.”   It relied on Della Rosa v. Van-Rad Contracting Co. Inc., 267 N.J. Super. 290, 294 (App.Div. 1993).  “A serious injustice might occur if a respondent were required to pay an award for temporary disability and medical services and then be unable to obtain the return of its monies in the event of reversal.  It would also be a matter of concern to petitioner to receive such payments with the prospect of possible repayment being required.”

The case can be found at Wilson v. Studio I, Inc., d/b/a/ Venture Photography, A-0117-12T4 (App. Div. August 8, 2013).  It is a useful case for practitioners in clarifying whether a motion for medical and temporary disability benefits should be heard early in the case or held to the end of the case when all issues will be decided.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Appellate Division Affirms Decision That a Motion for Past Benefits Should Not Be the Subject of a Motion Trial

Adam Weiner worked for the Elizabeth Board of Education and received an award of 100% total and permanent disability on October 18, 2000.  That entitled him to $480 per week for 450 weeks and thereafter.  That award was reduced on January 9, 2001 to $340.98 per week due to the social security disability offset rate.

The key development in this case occurred on April 1, 2002, when Mr. Weiner began receiving an ordinary disability pension benefit.  He did not disclose his receipt of ordinary disability pension benefits to the Board of Education, so the Board kept paying him $340.98 per week. 

On April 29, 2010, the Board sought approval to access Mr. Weiner’s pension records to determine if it was entitled to an offset.  On August 10, 2011, Weiner and the Board entered into a consent agreement, reducing Weiner’s disability rate going forward to $222.39, but there was no agreement on past overpayments of $57,753.33.

This action was filed by the Board to obtain reimbursement for the overpayments between April 1, 2002 through August 10, 2011, totaling $57,753.33.   A hearing took place on August 1, 2012, and on August 29, 2012 the Judge of Compensation denied the Board’s motion for reimbursement based on the conclusion that petitioner did not have the ability to repay the funds.  The Board of Education then appealed.

The Appellate Division was guided by the principle that “an underlying theme of the workers’ compensation law is that there should not be duplicative payments for the same disability” (citing Young v. Western Elec. Co., 96 N.J. 220, 231 (1984)).  The Court said that there is a two-step process: first, the Judge of Compensation must determine if petitioner was unjustly enriched for which the respondent has the burden of proof.  Second, the respondent can then “institute enforcement proceedings in the Law Division . . . which may be treated as a summary proceeding.” Hajnas v. Engelhard Mineral & Chemical Co., 231 N.J. Super. 353, 363 (App.Div. 1989). 

The Court said, “It is considered unjust enrichment to permit the recipient of money paid under mistake of fact to keep it, unless the circumstances are such that it would be inequitable to require its return.” (citations omitted).  In this case, the Court felt that the Judge of Compensation did not take a detailed look at the ability of the petitioner to make reimbursement payments.

No evidential hearing was held.  The compensation judge’s finding that Weiner was unable to repay the money, and therefore, that it would be inequitable to order reimbursement, was supported solely by ‘several years of his Individual Income Tax Returns, the most recent of which shows an annual salary of $17,295 for 2010.’ No statement of assets and liabilities evincing Weiner’s net worth was produced.  Further, no statement of income and expenses was considered by the judge of compensation.

The Court reversed and remanded for further proceedings.  “We will not indulge in hypothetical speculation of a net worth which would support the immediate return of the payments, which all parties agree, should never have been made to Weiner. Nor will we reach a conclusion based on incomplete facts concerning whether, after considering Weiner’s income and expenses, a payment plan would be appropriate.”

This case can be found at Weiner v. Elizabeth Board of Education, A-0627-12T2 (App. Div. July 15, 2013).  It is an important case for employers for a number of reasons.  The Appellate Division endorses the right of the employer to obtain reimbursement of benefits that are overpaid to the petitioner, including payments from a disability pension.  It is also important because the situation in this case is rather common, namely that someone receiving workers’ compensation later obtains a disability pension without that information ever getting to the employer or carrier on a timely basis.  Lastly, the case is significant because it sets forth specific requirements for each party in an unjust enrichment claim.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Employer May Be Entitled To Offset For Overpayment Of Benefits To Petitioner

Petitioner Valerie Pyles worked for respondent The Mentor Network as a therapist in the Somerset, N.J. office.   Her office was on the third floor of a four-story office building.  She generally took one of the building’s two elevators from the lobby to the third floor to get to her office.

On the accident date, Pyles drove to the office, parked and entered the main lobby of the building.  She then stepped into one of the elevators.  While entering the elevator, her forward foot slid into the elevator, causing her to spin and fall, leading to neck, left wrist and low back injuries.

The Mentor Network, with about 140 employees, was one of 14 or 15 companies in the building.  The company leased 18% of the building’s rentable space.  There were no designated parking areas for The Mentor Network’s employees, except for five or six parking spaces reserved for the leadership team.  The company did not maintain the parking lots since the lease placed that responsibility on the landlord. Further, the company did not tell employees how to enter the building or go to the third floor.

Under the terms of the lease, the landlord was responsible for maintaining the elevators.  Respondent was required to pay as additional rent a proportionate share of operational expenses, where were defined as “those expenses paid or incurred by the Landlord for maintaining, operating and repairing the building and property. . . “

Under N.J.S.A. 34:15-36, employment begins when the employee arrives at an area of employment under control of the employer.  Pyles argued in her claim petition that the elevator was under the respondent’s control.  The Honorable Arcides Cruz, Judge of Compensation, reviewed the terms of the lease and the case law and found that the case was not compensable because there was no proof that the employer controlled the elevator.  In fact, there were over a dozen other tenants in the building.  The Appellate Division affirmed the dismissal of the case.

This decision is consistent with the New Jersey Workers’ Compensation Statute.  In effect, in multi-tenant buildings an employee is not “at work” until he or she arrives at the office where the employer performs its work.  Common areas like lobbies and elevators are not controlled by the employer; thus accidents in those areas are not covered.  A different outcome would apply if the employer owned the parking or maintained the parking lot or the building at issue.

This case can be found at Pyles v. The Mentor Network, A-4071-11T1 (App.Div. 2013).

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This blog article was researched and written by John H. Geaney, Esq., a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

It is certainly not for lack of trying that plaintiffs remain largely unsuccessful in opening the door to intentional harm claims in New Jersey.  The door has remained closed in the past 10 years on intentional harm claims and all but locked, including the most recent challenge in Fendt v. Adam L. Abrahams, et. al., A-2333-11T1 (App. Div. April 9, 2013).

Michael Fendt worked in various capacities for Jeffrey Valvano, who operated JV Paving as a sole proprietorship.  He would fix equipment, drive machinery, and direct traffic around construction sites.  On May 19, 2008, Fendt was working as a “flagger,” stopping traffic on a busy county road so that Valvano could move a backhoe in and out of a driveway.  He stood in the center of the road with only a hand-held stop sign.  The company had fluorescent jackets, warning signs, cones, and flags available, but Fendt was not provided with any of this warning devices.  Valvano did not direct Fendt to utilize the warning devices.

On the date in question, Fendt was doing his work, holding a stop sign, when the defendant Adam Abrahams drove into Fendt, causing serious injuries.  Abrahams said that he had taken his eye off the road to look at his radio.  He later stated that if there had been warning cones in the road, he would have driven more slowly.  The police issued various citations to the company for not having proper construction warning signs and not complying with signage requirements.

Fendt sued the driver of the car, its owner and his own employer.  His expert opined that the employer “knowingly exposed (Fendt) to a risk that was substantially or virtually certain to result in harm.”  The expert cited the failure to comply with the Manual on Uniform Traffic Control Devices, failure to provide reflective safety vests, failure to comply with OSHA regulations, failure to have a written safety program, failure to adequately train employees in safety procedures, and failure to enforce safety policies to protect workers from harm.

The trial court dismissed the case, and the Appellate Division affirmed.  The court said that “intentional harm” encompassed more than a subjective intention to injure.  Mere knowledge and appreciation of a risk of harm to the employee does not equate to intent.  New Jersey courts have followed the rule in Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161 (1985), namely that there must be a showing of “substantial certainty.” First, the employee must knowingly expose the employee to a substantial certainty of injury.  Second, the resulting injury must not be a “fact of life of industrial employment.”

The court also cited the recent Supreme Court decision in Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2012) where plaintiff’s suit for intentional harm failed even though the workplace accident produced an OSHA citation for a “willful” violation of OSHA safety rules.  The Court said that even a finding of a willful violation under OSHA does not alone suffice to prove whether the employer committed an intentional wrong.

The Appellate Division found that this case had some parallels to Van Dunk, given the OSHA citations, fines,  and failure to use safety devices. It cited Van Dunk and a string of cases where plaintiff made out strong cases for intentional harm 10 years ago.   “Similar to Van Dunk, while the facts here amount to negligence, perhaps even gross negligence, they do not approach the facts in cases such as Millison, Laidlow, Mull, and Crippen.  In those cases, the employer was responsible for an affirmative act that made the workplace significantly less safe for its employees. The record contains no such affirmative act by the employer here.”

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Walesca Benvenutti worked for Scholastic Bus Company as a school bus driver.  She drove children to school in the morning and then drove them home in the afternoon.  She was required to clean the bus interior and inspect the seatbelts after each run.  The testimony of both petitioner and her employer was that there was no specific time that she had to clean the bus.  The employer confirmed that she was permitted to clean the bus off-premises and was paid additional money to clean the bus interior.

On June 9, 2010, petitioner parked the bus in front of her house after her morning run.  Before she exited the bus, she said she swept the bus and inspected the seat belts.  She testified that she tripped over a piece of rubber mat and fell while exiting the bus, sustaining injuries.  The respondent denied the claim because petitioner had prepared a handwritten statement three days after the incident occurred in which she never mentioned that she was cleaning the bus before she fell.

Petitioner testified at trial that when she wrote the handwritten statement, she was principally concerned about informing her employer that she had fallen and broken her ankle.  She said it did not occur to her at the time to inform her employer that she had just cleaned the bus.

The Judge of Compensation reviewed the testimony of the various witnesses and noted that two of the employer’s witnesses admitted that petitioner was permitted to sweep the bus at home. The judge also noted that it was a job requirement that petitioner clean the bus between runs during the day.  The judge found petitioner’s testimony to be credible and ruled in favor of compensability.

 The Appellate Division affirmed and stated, “The definition of ‘employment’ under the statute is multi-faceted, and includes situations in which the employee is physically away from the employer’s premises but nevertheless is ‘engaged in the direct performance of duties assigned or directed by the employer.’” N.J.S.A. 34:15-36.

The Court said that “Courts must bear in mind that ‘the language of the [Act] must be liberally construed in favor of employees.’” Cannuscio v. Claridge Hotel, 319 N.J. Super. 342, 349 (App. Div. 1999).  The Court ruled that as long as the employee is engaged in the direct performance of assigned duties, it does not make a difference whether the duties are performed on or off the work premises.  The case can be found at Benvenutti v. Scholastic Bus Company, A-3732-11T1 (App.Div.April 4, 2013).

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.