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McCarthy v. Quest Intern. Co.

November 27, 1995

PEARL MCCARTHY, PETITIONER-RESPONDENT,
v.
QUEST INTERNATIONAL COMPANY, RESPONDENT-APPELLANT.



On appeal from Division of Workers' Compensation.

Approved for Publication November 27, 1995.

Before Judges King, Landau and Kleiner. The opinion of the court was delivered by Landau, J.A.D.

The opinion of the court was delivered by: Landau

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

Petitioner-respondent Pearl McCarthy was a bookkeeper for respondent-appellant Quest International Company (Quest). She was injured while participating in a tug-of-war during a company picnic. Following bifurcated hearings on liability and disability in the Division of Workers' Compensation, the Judge of compensation first determined that McCarthy's injury was sustained by accident arising out of and in the course of her employment. Thereafter he found that she was entitled to temporary total disability benefits from May 5, 1991 through February 3, 1994, until she reached maximum benefit of treatment, returned to work, or further order of the court. The order also provided for payment of certain medical expenses.

Quest's appeal asserts that McCarthy failed to sustain her burden under N.J.S.A. 34:15-7 to establish that the company-sponsored picnic was a regular incident of employment and produced a benefit to her employer beyond improvement in employee health and morale. Quest also challenges the holding that McCarthy was unable to work and in need of medical treatment.

Our review of the record satisfies us that there was sufficient credible evidence on the record as a whole to support both the liability and disability determinations. Accordingly, we affirm substantially for the reasons set forth by Judge Kumpf in his oral opinions of September 17, 1992 and February 3, 1994. See Close v. Kordulak Bros., 44 N.J. 589, 598-99, 210 A.2d 753 (1965); Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282, 650 A.2d 1025 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

In affirming, we deem it appropriate to point out that the peculiar facts of this case, mostly undisputed, and as accepted by Judge Kumpf, markedly distinguish it from the typical case of a recreational injury suffered at a picnic or athletic contest conducted by a company for the morale, health and well-being of its employees.

"There is no gainsaying that through its amendment [L. 1979, c. 283] of N.J.S.A. 34:15-7 the Legislature intended to tighten, clarify, or eliminate the availability of workers' compensation for injuries sustained during recreational or social activities." Sarzillo v. Turner Constr. Co., 101 N.J. 114, 120, 501 A.2d 135 (1985). As noted in Poswiatowski v. Standard Chlorine Chem. Co., 96 N.J. 321, 331 n.2, 475 A.2d 1257 (1984), the joint statement accompanying the legislation enacted as L. 1979, c. 283, declared that the amended statute would exclude "most injuries sustained during recreational or social activities" (emphasis supplied).

Sarzillo teaches that the 1979 amendment was intended to except from compensability injuries or death resulting from recreational activities "unless such activities (1) are a regular incident of employment and (2) produce a benefit to the employer beyond improvement in employee health and morale." Sarzillo, supra, 101 N.J. at 119; see also Cotton v. Worthington Corp., 192 N.J. Super. 467, 471 n.2, 471 A.2d 56 (App. Div.), certif. denied, 96 N.J. 301 (1984).

The Supreme Court recognized that the two legislative criteria in N.J.S.A. 34:15-7, as amended, "accord substantially" with criteria delineated by Professor Larson in The Law of Workmen's Compensation.

The criteria enumerated by Larson for determining whether recreational activities occur within the course of employment are:

(1) They occur on the premises during a lunch or recreation period as a regular incident of the employment; or

(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the ...


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