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Mikkelsen v. N.L. Industries

Decided: February 15, 1977.

CHRIS MIKKELSEN, PETITIONER-RESPONDENT,
v.
N.L. INDUSTRIES, RESPONDENT-APPELLANT



For affirmance -- Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the court was delivered by Conford, P.J.A.D., Temporarily Assigned.

Conford

This appeal presents to this Court for the first time questions concerning the compensability, under the Workmen's Compensation Act (N.J.S.A. 34:15-1 et seq.), of an injury sustained by an employee during his attendance at a union meeting held after normal working hours and off the employer's premises. Both the Division of Workmen's Compensation and the Appellate Division, one judge dissenting, held the accident compensable. Because of the dissent, the appeal is before us as of right. R. 2:2-1(a)(2).

On February 2, 1973 respondent Chris Mikkelsen was employed by N.L. Industries, Inc. as a pump mechanic. On that day he participated in a union meeting which had been called specially for the purpose of ratification or rejection of a collective bargaining contract offered by the employer. The meeting was conducted at an inn located across town from defendant's plant. No members of N.L. Industries' management were present, and the employer did not provide union members with cars for transportation or the costs of transportation. The sole matter of business discussed at the meeting was the proposed bargaining contract, which the union membership voted to ratify. After the meeting, respondent

left the inn. While walking in the parking lot he stepped in a hole and injured his ankle.

The issue of the employer's liability for payment of compensation benefits came before the Compensation Judge on a stipulation of the facts just summarized. He found that the employee's attendance at the meeting to vote upon a contract offered by the employer was clearly an activity which simultaneously benefitted both parties, and that, therefore, the accident could be said to have arisen "in the course of employment" as required by the Act. N.J.S.A. 34:15-7. Subsequently, judgment was entered in the employee's favor for an award for partial permanent disability. As heretofore noted, the Appellate Division affirmed, holding in an unreported per curiam opinion that on the "limited and narrow" stipulation of facts before him the Compensation Judge was justified in his finding that the activities in which the employee was engaged when injured simultaneously benefitted both himself and his employer and therefore constituted a basis for compensation. We agree.

In support of its contention that the accident herein did not arise "in the course of employment", appellant points out that attendance at a union meeting was outside the scope of respondent's employment duties, that such participation was not under the control and supervision of his employer, and that the accident occurred off the employer's premises and at a time beyond working hours. It is, of course, long settled that, consistent with the remedial purposes of the compensation act and the liberal construction properly accorded its provisions, an employee need not actually be working in order to meet the "course of employment" test. Thus, in one line of cases our courts have extended the protection of the act to injuries sustained within the scope of the work-period and the work-place while the employee was engaged in personally motivated, but customary, or reasonably expectable activities. See, e.g., Crotty v. Driver Harris Co., 49 N.J. Super. 60, 69-70 (App. Div.) certif. den. 27 N.J. 75 (1958); Buerkle v. United Parcel Service, 26 N.J. Super. 404, 407-408 [72 NJ Page 213] (App. Div. 1953); Waskevitz v. Clifton Paper Board Co., 7 N.J. Super. 1, 3 (App. Div.), certif. den. 4 N.J. 561 (1950). Analogies may also be found in the cases carving out exceptions to the general rule that an employee is not in the course of employment when he is going to or coming from work. See, e.g., Bergman v. Parnes Brothers, Inc., 58 N.J. 559 (1971); Hammond v. The Great Atlantic & Pacific Tea Co., 56 N.J. 7 (1970). Similarly, we have accepted the proposition that activities other than those which an employee was hired to perform, if nevertheless conferring a clear and substantial benefit upon the employer as well as the employee, may be in the course of employment for purposes of the compensation act. This doctrine has found application in a wide variety of settings, bringing within the ambit of compensability injuries arising out of an employee's educational, recreational, or health-care related activities, having a nexus to the employment relationship. See, e.g., Strzelecki v. Johns-Manville, 65 N.J. 314 (1974) (work-related education course subsidized by employer); Saintsing v. Steinbach Company, 1 N.J. Super. 259 (App. Div.), aff'd o.b. 2 N.J. 304 (1949) (vaccination supplied by employer during smallpox epidemic); Ricciardi v. Damar Products Co., 45 N.J. 54 (1965) (company picnic sponsored by employer); Cuna v. Bd. of Fire Com'rs, Avenel, 42 N.J. 292 (1964) (company baseball game); Harrison v. Stanton, 26 N.J. Super. 194 (App. Div. 1953); aff'd o.b. 14 N.J. 172 (1954) (social event serving public relations purposes of employer); Du Charme v. Columbia Engineering Co., 31 N.J. Super. 167 (App. Div. 1954) (employer-sponsored Christmas party); Kelly v. Hackensack Water Co., 10 N.J. Super. 528 (App. Div. 1950) (employer-subsidized annual outing). Cf. 1 Larson, Law of Workmen's Compensation (1972) ยงยง 27.30, 27.32. The employee's primary thesis, approved both by the compensation judge and the Appellate Division, is that the "mutual benefit" rationale elaborated in the last-mentioned line of cases is equally applicable here.

It is noted at the outset that where the activity in which an employee was engaged when injured constitutes a clear and substantial benefit to the employer, an independent ground exists for the conclusion that the accident arose in the course of employment. Thus, where the activity otherwise confers a benefit upon the employer, lack of employer initiative of, or control over, the activity, as here, is not of itself fatal. See Complitano v. Steel & Alloy Tank Co., 63 N.J. Super. 444, 469 (App. Div. 1960) (dissenting opinion), rev'd on dissenting opinion below, 34 N.J. 300 (1961). Similarly, if such benefit is present, it is not decisive that the accident occurred away from the work premises. See Strzelecki v. Johns-Manville, supra, 65 N.J. 314; Complitano v. Steel & Alloy Tank Co., supra, 63 N.J. Super. 456, 463-468. "Rather the question is whether the event is sufficiently work-connected to bring the employees within the coverage of the compensation law, a law which provides protection for employees, not because of fault or failure of the employer, but rather upon the belief that the enterprise itself should absorb losses which inevitably and predictably are an incident of its operations." Ricciardi v. Damar Products Co., supra, 45 N.J. at 60.

The substantial question on this appeal, therefore, is whether the employee's attendance at a union meeting held to ratify a bargaining contract offered by the employer constitutes an activity benefitting both, such that the employer enterprise should absorb a loss predictably incident thereto. Since the precise factual situation here is one of first impression in the courts of this State, it is useful initially to note important decisional factors in the "mutual benefit" cases generally, and, secondly, to examine with greater specificity the cases involving claims for compensation benefits for injuries arising out of union-related activities.

A review of the decisions in this State finding compensable accidents arising out of educational and recreational activities on the theory of mutual benefit makes it quite apparent that the doctrine is particularly suited to case-by-case

analysis, with the results in each instance depending upon fact-shadings surrounding several relevant broad factors. See Complitano v. Steel & Alloy Tank Co., supra, 63 N.J. Super. at 459. In each of the cases in which compensation was allowed the activity in issue either clearly resulted in some direct benefit to the employer beyond the intangible value of enhanced employee health and morale common to all kinds of recreation and social life or inferentially evidenced some employer benefit, direct or indirect. Thus, relevant though not necessarily determinative factors have been that the activity served to advertise the enterprise to the general public (Cuna v. Bd. of Fire Com'rs, Avenel, supra, 42 N.J. at 305-306), or to up-grade the employee's job-related skills (Strzelecki v. Johns-Manville, supra, 65 N.J. 314), or substantially to improve management-labor relations (Du Charme v. Columbia Engineering Co., supra, 31 N.J. Super. ...


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