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Court Dismisses Claim of Petitioner Who Was Shot During Course of Employment

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.

The Little Known “Authorized Vehicle Rule” in Workers’ Compensation

I had the pleasure of Speaking on Law Day in Plainfield Workers’ Compensation Court on May 1, 2024 and wanted to share with readers part of the discussion in our session, namely the discussion of the New Jersey authorized vehicle rule contained in N.J.S.A. 34:15-36.  This is one of the most unknown but significant rules pertaining to when work starts and when work ends.  Practitioners, adjusters and employers are far more aware of the premises rule, the special mission rule, and the paid travel time rule than they are about the authorized vehicle rule.

Since the passage of the major overhaul of the New Jersey Workers’ Compensation Act in 1979, there have only been two significant published decisions that addressed in any detail the authorized vehicle rule, both cases involving the New Jersey Supreme Court.  The first was in 1992 in the case of Zelasko v. Refrigerated Express, 128 N.J. 329 (1992).  The case involved a truck driver who owned his own tractor and trailer.  Because his home community prohibited parking a trailer overnight, he had to park the trailer in a neighboring town in a friend’s yard.

On April 12, 1990, Mr. Zelasko made a delivery to Supermarkets General in Woodbridge.  He then drove to the terminal of his employer, Refrigerated Express, in Old Bridge to unload some pallets.  After that he started to drive to the neighboring town where he parked his trailer.  On the way he heard some rattling noises from the remaining pallets and became concerned about a problem.  He pulled off the road and stopped the truck.  He climbed onto the trailer to check the pallets but then fell from the trailer, suffering injuries.

The petitioner argued that his injury was covered under the authorized vehicle rule.  The Court focused on the following language of the statute which actually blends into one phrase two different rules (travel time and the authorized vehicle rule):   “…. But the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle should commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.”  The Court rejected petitioner’s claim because it concluded that petitioner had concluded his day when he returned to his employer’s place of employment to drop off pallets.  There was a lengthy dissent from Justice Handler, who argued that petitioner’s day was not finished because he still had to drive to a neighboring town, unhook the trailer and safely secure its contents.

Thirty one years later, the New Jersey Supreme Court in 2023 delivered a more detailed opinion on the authorized vehicle rule in Keim v. Above All Termite & Pest Control, 256 N.J. 47 (2023).  The facts were unusual in this case.  The petitioner was a pest control technician who was given a company vehicle to transport pesticides and chemicals needed for work.  His day generally began by checking his iPad for assignments and then leaving from his home to go to the client location for pest control.  However, his employer required all the technicians to refill their pesticides and chemicals at the employer’s location in Monmouth County.  There was a limit to how much pesticide quantity the technicians could keep in their truck due to concerns about spoilage of the chemicals and possible theft.  Technicians would have to make sure they had just enough chemicals in their vehicles to meet the needs of the jobs each day. 

On the date of petitioner’s accident, he was driving to the employer’s location in Monmouth County to refill the supplies in his truck.  Petitioner had concluded that he did not have sufficient supplies to perform his scheduled daily assignments.  He was involved in a car accident on the way to his employer’s location with serious injuries.  The employer argued that petitioner was on his way to work and therefore the premises rule applied.  The Judge of Compensation dismissed the case.  Petitioner appealed and the appellate division reversed in petitioner’s favor.  The Supreme Court then affirmed in favor of petitioner.

The Court did not hold that the drive to work was a special mission, partly because the Court had already decided that this was an authorized vehicle rule case and perhaps partly because the statute says that a special mission must involve a commute away from the employer’s place of employment.  The Court found that petitioner was using an authorized vehicle when the accident occurred, on business authorized by the employer and with authorization from his employer.  The Court said, “Above All provided an authorized vehicle for operation by Keim.  Keim’s operation of that vehicle to the shop on the morning of the car accident was solely for business expressly identified and authorized by Above All, namely, to replenish supplies. The entire arrangement, both as to the vehicle’s location and the need to replenish supplies, reflected a business decision expressly designed by the employer to further the employer’s interests in safeguarding and maintaining the quality of its supplies and in minimizing travel time for employees, thus facilitating a robust appointment schedule.”

Most employees who use their car for business do not have company cars:  lawyers, accountants, sales persons, real estate agents, certain nurses, and others.  Does the authorized vehicle rule require that the company own the vehicle?  The Court said no.  The rule is not limited to just employer provided vehicles. It could apply to a vehicle owned by the employee. The Court did not go into further details about how a personally owned vehicle will be deemed an authorized vehicle but the quote in the preceding paragraph seems to focus future analysis on whether the actions of the employee are furthering the employer’s business interests.

Does this case suggest that the drive to work is now compensable?  The Court addressed this issue, “However, the ‘authorized vehicle rule’ does not apply every time an employee is driving a vehicle authorized by an employer.  And importantly, the ‘authorized vehicle rule’ does not categorically apply when an employee is merely commuting to work in either an authorized personal or work vehicle.”  Drives from home to work and back from work to home will almost always be considered not covered under workers’ compensation.

I want to thank the Director and Chief Judge Maria Del Valle Koch, Judge Fred Hopke and Judge Neme Akunne for hosting this very enjoyable Law Day seminar and for making everyone feel welcome in the very accommodating Plainfield vicinage.  I also want to thank my co-presenter Rick Rubenstein, Esq., and all the lawyers who attended and raised many good questions throughout afternoon seminar.

The post The Little Known “Authorized Vehicle Rule” in Workers’ Compensation appeared first on NJ Workers' Comp Blog.

Private Sector EMTs and Paramedics Are Now Covered Under New Legislation Signed by New Jersey Governor Creating a High Rebuttable Presumption in Favor of Compensability of Strokes or Heart Attacks

The recent passage of A5909 has generated many questions from hospitals and private sector ambulance companies which provide EMT and paramedic services.  The questions focus on the recently passed legislative overhaul of N.J.S.A. 34:15.7.3.  That original 1988 law is entitled, “Cardiovascular or cerebrovascular injury or death of police, fire or emergency personnel in response to an emergency: presumption of compensability.”

On January 16, 2024, Governor Phil Murphy signed a sweeping overhaul of this 1988 legislation, providing coverage for a new category of employees, namely paramedics and EMTs, and extending the coverage to private sector paramedics and EMTs. The new law covers paramedics and EMTs who suffer a heart attack or stroke while responding to a public safety or medical emergency or remediating from one within a 24-hour period after the emergency has ended.

As readers know, a presumption of compensability shifts the burden of proof to the employer to disprove a case.  The original 1988 public sector cardiovascular or cerebrovascular law employed a preponderance of evidence presumption, meaning essentially that if the employer could prove by more than 50% that the heart attack or stroke was not work related, then employer would prevail.  The overhaul law which was passed last week changed the presumption to a much higher legal standard.  Now the employer has to prove by clear and convincing evidence that the heart attack or stroke was not related to work.  This is the first statute in New Jersey history to apply a clear and convincing evidence standard in workers’ compensation. 

What does this new standard mean? Readers can think of clear and convincing evidence as requiring the employer to offer proof that demonstrates by a high probability that the facts or medical evidence offered by the employer are true or accurate. Merely showing that the employer’s position is more likely than not to be accurate (just over 50%) will be insufficient to meet the clear and convincing evidence standard.  The defense must demonstrate a high probability that its position is accurate.

The questions that have been coming into our office have focused on what the new law means when it refers to private sector EMTs and paramedics.   Does this mean every single paramedic and EMT in New Jersey who has a heart or attack or stroke in close time relation to an emergency call is covered by this high presumption?  Unfortunately, this new law does not provide any commentary.  Here is what it says:

Coverage under this law shall apply to “any career emergency medical technician or paramedic, employed by the State, a county, a municipality or a private sector counterpart, who is engaged in public emergency medical and rescue services.”  Some have asked what the word “counterpart” means.  This is not a legal term, so one can study a dictionary definition.  The word “counterpart” is defined as someone who performs a function that corresponds to that of another person.  Example, the Manager of a baseball team is the counterpart to the Coach of a football team.  They perform similar services for their respective teams.  Does this new law mean that every private sector paramedic and EMT is automatically considered a “counterpart” of a public sector paramedic or EMT? 

Sometimes the Legislature adds comments after a new Bill explaining its analysis of the main changes to the bill.  There are no comments to explain why this law, formerly focused only on the public sector, is now applicable to private sector paramedics and EMTs.   It seems clear that this law will apply to a situation when a hospital or a private company enters into a contract with a municipality, county or the State to provide paramedic or EMT services for residents or facilities within the municipality, county or state. What we cannot tell is if a contract with a public sector employer is a threshold requirement.  Example:  a private sector ambulance company enters into a contract directly with a nursing home to perform emergency services.  Does that make the private sector EMT a “counterpart” under the above definition?  Does it matter that perhaps in the past the municipality used to perform these services with its paid or volunteer EMTs for the nursing home?  No one knows the answer, but we do know this:  arguments for a broad interpretation of this new law will be advanced by paramedics and EMTs who suffer heart attacks or strokes.  Those cases will be tried in the courts, which will eventually provide us with an answer.

It is also important to understand two other major aspects of the legislative overhaul of N.J.S.A. 34:15-7.3. First, the former requirement that the public safety official prove that he or she was “acting under orders from a competent authority in effecting a response” has been deleted.   The private sector paramedic or EMT does not have to demonstrate proof that he or she was ordered to respond to the emergency by some superior from work.

The other point to understand is that covered employees, including paramedics and EMTS, are presumed to be covered while “remediating from a law enforcement public safety or medical emergency.”  This language is also new.   The word “remediating” is defined as “leaving an emergency in a reasonable period of time, not to exceed 24 hours from the end of the emergency, to carry out post-injury agency protection and decompression including measures such as ‘critical incident stress debriefing.’”  In other words, if the heart attack occurs within 24 hours after the emergency has ended, most likely the presumption of compensability will still apply.   Again, this presumption is the highest presumption ever applied to any New Jersey workers’ compensation statute.

The post Private Sector EMTs and Paramedics Are Now Covered Under New Legislation Signed by New Jersey Governor Creating a High Rebuttable Presumption in Favor of Compensability of Strokes or Heart Attacks appeared first on NJ Workers' Comp Blog.

Appellate Division Finds Accident in Pennsylvania Compensable As Petitioner Had Resumed Drive to Customer Location in New Jersey

Petitioner Mario Pozadas was injured on October 14, 2016.  He was the owner of the respondent Capital Iron Associates, LLC., which specialized in fabricating and installing welding materials.  Earlier in the day he was working on a home renovation project taking place in Hightstown, New Jersey.  Mr. Pozadas drove a flatbed truck carrying several workers to that project. Around three p.m. he got a call from a client about doing a project at a funeral home in the same town.  He met with his client at a deli to discuss the job.  Then he dropped off his hourly workers and the flatbed truck at his Trenton, N.J. shop.

Petitioner testified that he planned next to travel back to Hightstown in order to prepare an estimate that afternoon for the funeral home.  He further said that he decided to use a friend’s motorcycle to travel back to Hightstown.  He chose not to drive directly to the funeral home destination.  Because it was a nice day, he decided to drive four miles west from Trenton into Pennsylvania on his friend’s motorcycle.  He exited south on the Route 13 jughandle in Morrisville, Pennsylvania intending to proceed to Hightstown when the accident occurred, resulting in very serious injuries.  The Court noted that a direct route from the shop to the funeral  home was approximately 15 miles, but the longer route via Pennsylvania would have been approximately 26 miles.  

Hartford Insurance denied the claim and argued that petitioner was not in the direct performance of duties at the time of his injury because he had driven west into Pennsylvania instead of driving east to Hightstown.  Respondent argued that the drive to Pennsylvania constituted a deviation from employment.  The Court noted that as the owner, petitioner could choose whatever vehicle he wanted to use and could choose the route he wanted to take. 

The Judge of Compensation ruled for petitioner and held that the accident occurred in the course of employment, and the Appellate Division affirmed.  The Appellate Division noted that this was not a case of someone who had stopped on the way to perform a personal errand and then got hurt.  The Court also noted that the Judge of Compensation made a finding that petitioner was credible in stating that he intended to cross back into New Jersey and drive directly to Hightstown, N.J.

The Court held that petitioner was engaged in the direct performance of work duties and relied on N.J.S.A. 34:15-36, which defines the scope of employment:

Employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer; provided, however, when the employee is required by the employer to be away from the employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer;

The decision in Pozadas v. Capital Iron Associates, LLC, No. A-0162-22 (App. Div. Oct. 30, 2023), is interesting for a number of reasons.  The first question is whether the result would have been different if the case had been viewed as a recreational activity claim under N.J.S.A. 34:15-7.  Section 7 deals with recreational and social activity claims.  The Appellate Court opinion focused on the premises rule under N.J.S.A. 34:15-36.  There is no discussion in the decision about whether the petitioner was engaged in a recreational activity while driving the motorcycle in the State of Pennsylvania.  He said he chose to go west because it was a nice day to drive the motorcycle even though it lengthened the trip by 11 miles.  N.J.S.A. 34:15-7 provides that recreational activities are not compensable unless they are a regular incident of employment and promote a benefit to the employer beyond improvement of health and morale.   

The opinion also raises another interesting question:  what would have happened if the petitioner were an employee, rather than the owner?  There is little doubt that if an employee had been directed to drive to Hightstown for work purposes but instead decided to drive west four miles into Pennsylvania, the respondent’s argument would have been successful on deviation from employment.  A similar issue was raised in another unpublished case, Mackoff v. New Brunswick Saw Services, No. A-3625-19 (App. Div. July 14, 2021).  In that case the employee had a business meeting in West Caldwell, N.J. and said he intended to drive to the New Brunswick office of his company.  However, he was hungry and decided to have lunch in Kenilworth, N.J.  He said he went to the hot dog restaurant because he loved their hot dogs and it was a nostalgia place for him.  His accident was held not compensable because the Judge of Compensation found “the primary purpose for driving to the hot dog place was personal and not work related.”

Hartford Insurance Company also denied petitioner’s claim because of lack of workers’ compensation coverage on the date of the accident.  The policy had very recently expired when the motorcycle accident occurred. The opinion indicates, however, that the carrier was not able to produce witnesses from the broker who would have been needed to prove the employer had notice of cancellation of the workers’ compensation policy. 

The post Appellate Division Finds Accident in Pennsylvania Compensable As Petitioner Had Resumed Drive to Customer Location in New Jersey appeared first on NJ Workers' Comp Blog.

A Practitioner’s Guide to “Arising Out of Employment and Occurring In the Course of Employment”

Practical Advice in New Jersey Workers’ Compensation

Practitioners and employers will often hear the phrase, “arising out of and in the scope of (or course of) employment.” This phrase encompasses two separate concepts: 1. Occurring in the course of employment, which refers to when the injury occurred and if it occurred at work; and 2. Arising out of employment which refers to causation and how the injury occurred and if work, and the employee’s employment and work, was a causative factor of the injury.

Sometimes there are instances where an injury may occur during work or arise out of work, but not both. An injured employee must prove both. Below are hypothetical situations where Respondent may have a good argument that the injury is not compensable as the injury does not arise out of AND occur in the course of employment.

Scenario 1: Peter, a cashier, is walking an item back to a shelf. As he is walking, his knee locks up. He does not trip or fall to the ground but he does sustain a knee sprain.

Here, there is a good argument that this injury did not arise out of employment. This is outlined in Meuse v. Egg Harbor Township Police Department, No. A-4553-90T5 (App. Div. May 6, 1992), where the Appellate court found that petitioner’s knee could have buckled at any time and it was a coincidence that the knee buckled at work. Therefore, as the work conditions had nothing to do with the knee injury, the injured worker was not entitled to benefits.

If Scenario 1 changes just slightly to a situation where something at work causes the injury, the outcome can be quite different.

Scenario 2: Peter, a cashier, is walking an item back to a shelf. As he is walking, his knee locks up. He falls to the ground, and his elbow hits a shelving unit, as well as the linoleum floor as he hits the ground and he sustains an elbow fracture from the impacts.

Here, the injured worker has a stronger argument that this is compensable as the shelving unit and the linoleum floor at work were what ultimately caused petitioner’s injury to his elbow. The employer should rely on George v. Great Eastern Food Products, 44 N.J. 44 (1965) and maintain that it is only responsible for any injury to the elbow caused by the shelf and floor at work, not any injury to the knee, which was not caused by anything at work.

Scenario 3: Tony and Rick are co-workers and are working a shift together. Tony’s life-long personal enemy, Fred, comes to their place of employment and punches both Tony and also punches Rick, who was standing in between Tony and Fred.

As to Tony, this injury does not arise out of the scope of employment, pursuant to Pittel v. Rubin Bros. Bergen, Inc., 59 N.J. Super. 531 (App. Div. 1960). While this injury did occur at work, the injury stemmed from a personal relationship that had nothing to do with work. However, as to Rick, this injury does arise out of the scope of employment. Fred had no outside personal relationship with Rick, so this attack was not personal and did arise in the scope of employment and it also arose out of employment.

Scenario 4: Tom has pre-existing high blood pressure. While attending a work meeting, he feels sudden chest pain. He is diagnosed with a myocardial infraction.

Here, the cardiac event occurred at work but was not caused by work, as Tom was just attending a meeting when the heart attack occurred. This injury did not arise out of work.

Employers should keep in mind that an injury must both arise out of and occur during the course of employment to be accepted as compensable. Injuries which are caused by a personal risk, or personal relationship, are not compensable under our statute.

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