On appeal from the New Jersey Department of Labor, Division of Workers' Compensation.
Before Judges Long, Stern and Lesemann.
The opinion of the court was delivered by: Stern, J.A.D.
Respondent employer P.C. Richard & Son ("the employer" or "respondent") appeals from a partial permanent disability award of 25% for orthopedic and radial neuropathy "residuals of spiral fracture of the right humerus with scarification." It contends that the injuries are not compensable. We agree and reverse the judgment of the Division of Workers' Compensation.
Because we agree with the employer that the injury is not compensable even giving petitioner the benefit of all legitimate factual inferences favorable to his position, we incorporate petitioner's recitation of the facts adduced at the hearing:
On May 23, 1994, petitioner Nelson Quinones was employed by respondent P.C. Richard & Sons as a stock person.
On the aforementioned date, petitioner reported to work at approximately 4:00 p.m. It was petitioner's intent to do his regular job which included replacement of stock items.
Petitioner was in the course of his usual job activities when his supervisor, [Ronald Landstrom], approached him. Petitioner's supervisor asked petitioner whether he wanted to arm wrestle.
Petitioner proceeded to arm wrestle with his supervisor. Petitioner sustained injury. The accident occurred during petitioner's working hours. At the time of the incident, the store was still open. The manager of the store was in the area, as were salespeople and customers.
Petitioner had worked for respondent for approximately a year and one-half to two years. During that time, arm wrestling occurred on a regular basis. Many employees participated in this activity, including sales persons, stock persons, and managers.
Prior to the date of accident, petitioner had engaged in arm wrestling with his supervisor, Ronny. He had done so on approximately four to five times prior to the date of accident. Many employees arm wrestled and the competition at the store was like a tournament. Arm wrestling would occur both during breaks and during working hours.
Many of the above facts were corroborated by respondent's assistant store manager, Ronald Landstrom, who admitted in his testimony at trial to having engaged in an arm wrestling match with petitioner on the date in question. Respondent's assistant store manager admitted that arm wrestling did occur at the store prior to the accident in question perhaps every couple of weeks or two to three times per month. Petitioner's supervisor indicated that "ust a few of the guys ... with the egos ... the strongest guy in the store type of thing" were the employees who usually participated in the arm wrestling. Landstrom admitted that he had engaged in arm wrestling on prior occasions and had engaged petitioner in arm wrestling on prior occasions.
During the incident on May 23, 1994, Petitioner sustained a serious spiral fracture of the right arm ...