burden of proof

There are very few cases in the New Jersey Division of Workers’ Compensation involving injuries to employees who are shot at work. Avery v. Next Mile, LLC/DSP, No. A-2506-22 (App. Div. May 23, 2024) presents several interesting issues.

Petitioner, Mr. Avery, worked for Next Mile, which acted as a subcontractor for Amazon.  On August 27, 2020, Avery reported to work in a parking lot over which Amazon exercised some control.  Avery got there an hour early, waiting for delivery assignments from a dispatcher.  He said he was wearing “Amazon clothing.”  While he waited, he sat on the rear bumper of a delivery truck.

Petitioner testified that about 15-30 minutes after his arrival, he saw a person wearing a mask and an Amazon vest approach him.  This individual stood two arms’ lengths away from him and proceeded to point his gun at Avery, shoot him, and then flee the scene. The shooter took nothing from Avery and did not attempt to harm anyone else in the parking lot.

Petitioner was admitted to the hospital.  Following his discharge, he fled to the State of Massachusetts out of fear for his life.  He then returned to New Jersey for two days.  In December 2020, petitioner went grocery shopping and saw two individuals in the grocery store wearing ski masks. He was convinced these individuals were trying to kill him, so he fled this time to the State of Florida.

At trial petitioner admitted on cross examination that he had had an argument on the phone one or two weeks before the shooting with a former Amazon employee, Mr. Blocker, regarding some money that petitioner owed Mr. Blocker for purchasing credit cards.  Petitioner further admitted that he and Blocker had no issues arising from work when they worked together.

Supervising Judge of Compensation, the Honorable Robert D. Thuring, heard petitioner’s testimony and found petitioner to be lacking in credibility.  He noted inconsistencies in petitioner’s testimony regarding his version of events.  The Judge found that the shooting did take place during the course of petitioner’s employment but that it did not arise from his employment.  He therefore dismissed the case. The Judge of Compensation explained his reasoning as follows:

Petitioner testified that he had no issues with [Blocker] while they were both working for respondent and the purchase of the credit card from [Blocker] had nothing to do with the petitioner’s employment with respondent.  Furthermore, the shooting appears to have been a targeted act and was just as likely to have occurred outside the workplace.  I find that it is more likely than not that the shooting was related to the credit card purchase from [Blocker].  Even if the shooting was unrelated to [Blocker], the record is still void of any evidence connecting the incident to the petitioner’s employment with the respondent.

Petitioner appealed and argued that the Judge of Compensation should have placed the burden of proof on respondent to disprove that the shooting arose from employment.  Counsel for petitioner argued that neither the police nor respondent had been able to identify the shooter.  Petitioner urged the Court to follow the line of cases in idiopathic claims that shift the burden of proof to respondent.  In idiopathic defenses in New Jersey, the employer must prove that the injury was more likely caused by a personal condition.  The Appellate Division rejected this argument and said that this case had nothing to do with a preexisting physical condition.  The physical injury was clearly caused by the shooting. Instead, the Court relied on a line of cases that pertains directly to work assaults.  “When an assault on an employee is purely the product of a personal relationship against him by the ‘assailant’ . . . and the assailant is not a ‘fellow-employee, and there is no more connection between the assault and the employment than that it occurs while the employee is at work, recovery is not allowed.’ “ Pittel v. Rubin Bros. Bergen, Inc., 59 N.J. Super. 531, 536 (App. Div.1960).

The Court held that the burden of proof in this case rested on petitioner to show more likely than not that the shooting arose from work.  The decision is instructive for several reasons.  No one knew the identity of the assailant, but the Judge of Compensation and the Appellate Division concurred that petitioner failed to prove a work connection to the shooting.  The Appellate Division said, “In addition to issues of credibility with petitioner’s testimony, the judge’s findings were supported by facts in the record:  petitioner was singled out and shot in a parking lot where several other individuals were also present, the incident was not theft-related and no one else was approached or injured.”

The case underscores the point that the burden of proof really does make a difference in many cases and that not every injury that happens at work arises from work.

This case was successfully tried in the Division of Workers’ Compensation by Capehart shareholder, Ashley Fiore, Esq., and was successfully argued in the Appellate Division by Capehart shareholder, Brian Berkoff, Esq.