A Petitioner Bears the Burden to Establish the Compensability of The Worker’s Compensation Claim



No. A-3625-19







Submitted March 3, 2021 – Decided July 14, 2021

Submitted by New Jersey Workers’ Compensation Lawyer, Jeffrey Hark.

Petitioner was employed by New Brunswick Saw Services as a salesperson and account manager. Respondent sells and services food processing equipment and meat room equipment. Petitioner worked mostly from home but as part of his duty he would travel to clients’ businesses for meetings and service calls. He also met with prospective clients in territories that include New Jersey, Northern Delaware, and parts of Pennsylvania, New York City and Southern Connecticut. He worked 45 hours a week approximately and weekends but was never required to submit a schedule to superiors. On December 3, 2018, petitioner left his home in Blackwood for a 10 AM meeting with a client in West Caldwell. The meeting lasted about an hour, following the meeting petitioner wanted to go to one of his favorite places for a hotdog in Kenilworth. He intended to head south and stop off at his office in Middlesex after he ate lunch. On his way to Kenilworth petitioner was involved in a car accident. A few weeks after the accident, Petitioner filed an employee claim petition for Worker’s Compensation alleging he sustained compensable injuries to his head and neck and back during the accident. Respondent denied he sustained any compensable injury that arose out of and in the course of his employment. Petitioner filed a motion for medical temporary disability benefits. In June 2019 the parties appeared before a compensation judge for an evidentiary hearing. Petitioner goes on the record to say there was nothing pressing to do after his meeting on the date in question and he was hungry, so he decided to get food first before heading into the office. Defendant claims he was heading specifically to the hotdog place for lunch and then Going to the office. He claims he was going to a prospective buyer because the hot dog shop used slicers for their sandwiches so it’s a potential customer. On cross-examination petitioner acknowledged the hotdog stand was never a perspective customer and was located approximately an hour away from his office. Petitioner also testified he had other customers in the area of the hotdog restaurant but none of them were scheduled for an appointment on this day.

On May 5, 2020, the compensation judge denied petitioners motion for benefits and dismissed the claim. The judge found petitioner failed to prove by a preponderance of the evidence that he was injured during his employment. The judge concluded petitioner was in route for the hotdog place when the motor vehicle accident occurred and did not intend for this hotdog establishment to be a prospective client. His primary purpose for driving to the hotdog place was personal and not work related. The judge stated that not every place where petitioner might stop can be a work-related venture and therefore can’t allow the hotdog establishment to be a prospective client.

Petitioner appeals the compensation judge’s decision and argued he had not completed his workday when he was involved in a motor vehicle accident.

A petitioner bears the burden to establish the compensability of the claim being made. Lindquist v. City of Jersey City Fire Dep’t, 175 N.J. 244, 279 (2003). Additionally, our review of workers’ compensation cases is “limited to whether the findings made could have been reached on sufficient credible evidence present in the record.” Hersh v. Cty. of Morris, 217 N.J. 236, 243 (2014) (quoting Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004)). We give “substantial deference,” Ramos v. M & F Fashions, Inc., 154 N.J. 583, 594 (1998), to the factual findings of a judge of compensation “in recognition of the compensation judge’s expertise and opportunity to hear witnesses and assess their credibility.” Goulding v. NJ Friendship House, Inc., 245 N.J. 157, 167 (2021). However, we do not defer to a judge of compensation’s legal conclusions. Hersh, 217 N.J. at 243. “An employee is entitled to compensation for an accidental injury under the Workers’ Compensation Act, N.J.S.A. 34:15-1 to -142, if the injury ‘a[rose] out of and in the course of employment.'” Cooper v. Barnickel Enters., Inc., 411 N.J. Super. 343, 346 (App. Div. 2010) (alteration in original) (quoting N.J.S.A. 34:15-7). 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; see also

Cooper, 411 N.J. Super. at 346.The Supreme Court in Jumpp v. City of Ventnor, 177 N.J. 470, 482 (2003) noted that “when an employee is assigned to work at locations away from the employer’s place of employment, eligibility for workers’ compensation benefits generally should be based on a finding that the employee is performing his or her prescribed job duties at the time of the injury.” (Internal quotation marks omitted). Eligibility for benefits also has been found for employees who have been injured in the course of a “minor deviation” from their duties. Id. at 484.

Petitioner argued the hotdog restaurant was no more than a minor deviation in his work schedule. The appellate court did not find these arguments convincing. The appellate court understands the rules of Worker’s Compensation and that compensation benefits should be based on finding that employees were injured while performing his or her prescribed job duties. Petitioner admitted that his trip to the hotdog restaurant would have taken about an hour both ways instead of going directly to his office. Also, there is no proof defendant was going to the hotdog restaurant and treating them as a prospect customer. Finally, petitioner had no other appointments in the area of the hotdog restaurant. The appellate court agreed with the compensation judge’s decision which found the primary purpose for driving to the hotdog restaurant was personal and not work related. The appellate court also contains that the 2-hour road trip for a hotdog was not a minor deviation and was a long ways away with no other appointments in the area. The appellate court finds these arguments lacking sufficient merit and affirm the compensation judge’s decision.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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