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Carberry v. State

Decided: January 31, 1995.

DAVID M. CARBERRY, PETITIONER-RESPONDENT,
v.
STATE OF NEW JERSEY, DIVISION OF STATE POLICE, RESPONDENT-APPELLANT.



On appeal from the Division of Workers' Compensation.

Before Judges Havey, Brochin and Cuff.

Havey

The opinion of the court was delivered by HAVEY, J.A.D.

In this workers' compensation case, petitioner, a sergeant with respondent New Jersey State Police, on sick leave for a condition not connected with his employment, was required by respondent to be examined by a State Police physician for the purpose of obtaining medical clearance to return to work. On his way home from the doctor's office petitioner sustained injuries as a result of an automobile accident. The Judge of compensation concluded that the accident arose out of and in the course of petitioner's employment because petitioner "was following the direction of his superiors" by reporting to the doctor's office for medical clearance to return to his job.*fn1 We disagree and reverse.

Petitioner was diagnosed as suffering from multiple sclerosis in 1978. In January 1992, he began experiencing blurry vision. When he reported to the state trooper barracks for work, he complained about his vision problem. He was placed off duty and was directed to report to Dr. Vivona, a cardiologist assigned by the State Police to examine troopers who are placed on sick leave.

A written State Police "S.O.P." requires any trooper who is absent from work for three consecutive working days because of a medical condition to submit to a physical examination by a "Division Physician." The Division thereupon places the trooper on full-duty status, temporary-duty status, or temporary off-duty status based on his or her condition. The Division physician determines, upon subsequent examination, when the trooper is able to resume full-duty status.

Petitioner resides in Manahawkin, a township located in southern Ocean County. On January 15, 1992, Dr. Vivona, whose office is in Brick Township, Ocean County, examined petitioner and certified in a "Division Physician's Report" that petitioner was suffering from a physical condition which temporarily prevented him from performing "in any capacity within the organization." Dr. Vivona also referred petitioner to another physician, Dr. Bhat, who prescribed Prednisone as a method of controlling petitioner's multiple sclerosis symptoms. Dr. Vivona also referred petitioner to Dr. Cook, a specialist in the treatment of multiple sclerosis.

In adherence to State Police policy, petitioner reported to Dr. Vivona periodically for the purpose of examination to determine if he was capable of returning to work. On December 21, 1992, after examining petitioner, Dr. Vivona filed another "Division Physician's Report" stating that petitioner was not yet capable of returning to work because of his condition. Dr. Vivona directed that petitioner return for further examination in "three weeks."

Petitioner was driven by his wife to Dr. Vivona's office on January 18, 1993. He was still on off-duty status and continued to have problems with his eyes. Because of personal problems, Dr. Vivona was unable to examine petitioner on that date. His office instructed petitioner to return later in the week. On the way home from Dr. Vivona's office, petitioner was involved in the automobile accident which caused his injuries.

The issue before us is whether petitioner's visit to Dr. Vivona's office arose "out of and in the course of" petitioner's employment with the State Police. N.J.S.A. 34:15-7. In resolving that issue, we begin by noting that the visit was not for the purpose of treatment for a prior work-related injury. Dean Larson, in his treatise, explains that "when an employee suffers additional injuries because of an accident in the course of a journey to a doctor's office occasioned by a compensable injury, the additional injuries are generally held compensable . . . ." 1 Larson, The Law of Workmen's Compensation § 13.13 at 3-564 (1990) (emphasis added). This view is bottomed on Dean Larson's "quasi-course of employment" concept, that is, activities undertaken by the employee:

following upon his injury which, although they take place outside the time and space limits of the employment, and would not be considered employment activities for usual purposes, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury.

[Larson, § 13.11(d) at 3-542.]

We adopted Dean Larson's view in Camp v. Lockheed Electronics, Inc., 178 N.J. Super. 535, 543-44, 429 A.2d 615 (App. Div.), certif. denied, 87 N.J. 415 (1981), where petitioner was injured in an automobile accident returning home from a physician who was treating her for a prior work-connected injury. A majority of jurisdictions have also embraced the concept. See e.g. Southern California Rapid Transit Dist., Inc. v. Workers' Compensation Appeals Bd., 23 Cal. 3d 158, 588 P.2d 806, 808-09, 151 Cal. Rptr. 666 (Cal. 1979); Telcon, Inc. v. Williams, 500 So.2d 266, 269-70 (Fla. Dist. Ct. App. 1986), review denied, 508 So.2d 15 (Fla. 1987); Charles N. Clark Assocs. Ltd. v. Dependents of Robinson, 357 So.2d 924, 928-29 (Miss. 1978). The rationale uniformly applied by these cases is that the employee's trip to the doctor's office is necessitated by the employer's statutory duty to provide medical treatment for the prior work-related accident, and the employee's concomitant duty to submit to such reasonable treatment. Southern California Rapid Transit Dist., Inc. v. Workers' Compensation Appeals Bd., 588 P.2d at 809.

Here, the "quasi-course of employment" concept is not applicable because petitioner was not being treated by Dr. Vivona for a prior work-connected injury. It is undisputed that petitioner was suffering from multiple sclerosis, a condition neither related to nor aggravated by his work duties. Therefore, he was under no statutory duty to undergo treatment. See Anderson v. Chatham Elecs., 70 N.J. Super. 202, 205-06, 175 A.2d 256 (App. Div. 1961), certif. denied, 36 N.J. 303 (1962) (injury not compensable where petitioner's accident ...


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