To Be Eligible for Workers’ Compensation, An Incident Must Pass a Two-Prong Test for An Injury Sustained During a Recreational or Social Activity





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

Petitioner worked for F&B Garage Door is a business that sells and installs residential garage doors. On Friday, December 23, 2016, respondent was hosting a holiday party at a local restaurant. Employees were encouraged to bring friends or families and only respondents’ employees and guests were allowed. Petitioner decided to bring her brother, and the office manager provided both petitioner and her brother with transportation to and from the event. The party ended around midnight and once Ferrera paid the bill she drove home. Once home, Ferrara’s guest got into the driver seat and drove petitioner and her brother home. Momentarily after leaving Ferrera’s home, the vehicle struck a parked car and flipped over. As a direct and proximate result of the crash, petitioner required surgery to her neck and jaw.

Petitioner filed for a workers’ compensation claim, alleging that she was in the course of her employment at the time of the accident. Petitioner averred A) she was informed she would not receive her holiday bonus if she did not attend and, B) can only receive her bonus at the event. Respondent countered A) the bonusses were given out a few days before the party, B) not attending would have no affect against the employee, C) Petitioner received a deposit at an ATM three days before the party of the amount of $540 as well as $300 she received at the party.

The Judge of Compensation ruled after hearing all the evidence the petitioner was not credible. The Trial Court found Petitioner was unclear on how much she was being paid and that her testimony was contradictory at times. She was told the bonuses were only to be received when you attended but she got the deposit for the bonus a few days before the party. She also claimed she would not have attended unless transportation was provided.

The compensation judge used the two-prong test for determining compensability for an injury sustained during a recreational or social activity. “The activity (1) must be a ‘regular incident of employment,’ and (2) must ‘produce a benefit to the employer beyond improvement in employee health and morale.'” Lozano v. Frank DeLuca Construction, 178 N.J. 513, 534-35 (2004). The judge concluded the party provided no benefit to the respondent other than to improve moral and attendance to the party was not mandatory to receive the bonus. The judge ruled since she was not within the course of employment, she was not eligible for workers’ compensation.

On appeal, the Appellate Court’s review of the compensation judge is whether she or he abused their discretion and if there was any error with his finding. The Appellate Court found the compensation judge made no error based upon the facts in determining the holiday party was a recreational activity or social activity that produced no benefit to respondent, beyond its effect on employee morale. There was no evidence employees had to attend the holiday party. There was also no evidence the petitioner should have reasonably believed her attendance was mandatory since it never was mandatory to receive this bonus in the past. The Appellate Court affirmed the compensation judge’s ruling.

Here at Hark&Hark we are up to date with the current workers’ compensation issues in New Jersey. We understand the world has changed since coronavirus, working on zoom, google meet, or any online working service. However, just because you may work online does not mean you are not entitled for workers’ compensation. As the world reopens people are still working from home but still can recover. If you have been injured during the course of your employment, please contact us at  856-354-0050.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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