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Sager v. O.A. Peterson Construction

December 21, 2004

ROBERT SAGER, PETITIONER-APPELLANT,
v.
O.A. PETERSON CONSTRUCTION, CO., RESPONDENT-RESPONDENT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether an employee's injuries are compensable when those injuries arose out of an automobile accident while the employee was out to an early dinner at the direction of his on-site supervisor, with the understanding that the employee would return to his job site for overtime work.

On the day of the terrorist attacks in New York City in September of 2001, Robert Sager was working at a construction site on Long Island, New York, for his employer, O.A. Peterson Construction Company, a New Jersey contractor. Because the attacks caused the emergency closing of all bridges and tunnels between New York and New Jersey, Sager and several co-workers were unable to return to their New Jersey homes at the end of the scheduled workday. Because of their anxiety about the catastrophic events unfolding just a few miles away, neither Sager nor his co-workers were able to eat during their lunch break. At around 3:00 p.m., Sager and his co-workers left the site to have an early dinner. They climbed into a van owned and operated by one of the workers and drove a few miles to a local diner. They finished their meal in about fifteen minutes, and, while driving back to the job site, the van was involved in a head-on collision with another vehicle. Sager was seriously injured.

Sager filed a Claim Petition with the New Jersey Division of Workers' Compensation and a trial was held. John Devlin, the on-site supervisor of the project, testified at trial that it was his decision that everyone leave the site to get something to eat and that they would return, continue working, and that the workers would be paid overtime. David Traud, O.A. Peterson's project manager for the Long Island site, testified that Devlin was in charge when he was not on site and that Devlin was authorized to allow employees to work overtime.

The compensation court decided that Sager's claim was compensable, concluding that he was on a "special mission" at the time of the accident. In an unpublished per curiam opinion, the Appellate Division reversed, holding that the case was not compensable because Sager, when injured, was neither required by his employer to be away from his place of employment nor engaged in the direct performance of his employment duties. We granted Sager's Petition for Certification.

HELD: Sager's injuries are compensable because the on-site supervisor's credible testimony supports the conclusion that Sager was acting under the direction of his employer when the automobile accident occurred.

1. Our courts and Legislature have established principles that seek to fairly distinguish between compensable and non-compensable work-related injuries. In Lozano v. Frank Deluca Constr., 178 N.J. 513, 518 (2004) we concluded that "when an employer compels an employee's participation in an activity generally viewed as recreational or social in nature, the employer thereby renders that activity work-related as a matter of law." In this matter, the Appellate Division did not have the benefit of our holding in Lozano when it rendered its decision. Thus, we take this opportunity to reaffirm the principle that when an employer directs or requires an employee to undertake an activity, "that compulsion, standing alone, brings an activity that is otherwise unrelated to work within the scope of employment." Id. at 532. (Pp. 7-10).

2. If in reviewing an agency decision, an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings, even if the court believes that it would have reached a different result. Devlin's testimony, standing alone, constitutes sufficient credible evidence to support the compensation court's conclusions. Simply stated, Sager's injuries are ompensable because Devlin's credible testimony supports the conclusion that Sager was acting under the direction of his employer when the automobile accident occurred. In addition, there is ancillary evidence that, though not dispositive, strengthens the conclusion that Sager and the other two employees reasonably construed Devlin's words as a directive, and that Devlin, for all intents and purposes, controlled the situation, despite certain trial testimony that may appear to show that Sager voluntarily chose to go out to the early dinner. Both the compensation and appellate courts recognized that Devlin, as on-site supervisor, was the decision-maker in the group, not Sager or any other employee. We recognize that in many cases the supervisor's reaction to an employee's refusal may not be adverse. Yet, most employees comply with their supervisors' requests or orders and are expected to do so. We do not require proof of Sager's reasonable belief under the circumstances of this case. When an employer acknowledges its directive, as here, and when a compensation court credits the employer's testimony, as here, we will not require the employee to produce additional proof. (Pp. 10-17).

3. For almost one hundred years, under the Workers' Compensation Act, our State has afforded protection to and for workers injured at the workplace. The Act is but one part of a statutory, decisional, and constitutional mosaic that provides dignity for all of our citizens in the workplace, but it is a significant piece nonetheless. Courts may parse testimony and refine tests, as we have done here. But, as we do, we must remain mindful that this "humane social legislation" ...must be liberally construed "in order that its beneficent purposes may be accomplished." (Pp. 17-18).

The judgment of the Appellate Division is REVERSED and the Division of Workers' Compensation's award of benefits is REINSTATED.

JUSTICE WALLACE filed a separate, dissenting opinion, in which JUSTICE RIVERA-SOTO joins, stating that he could not conclude from the testimony that the supervisor's comment was a directive and, in addition, that the Compensation Judge failed to apply the "reasonable belief standard" to Sager's decision to go to dinner. The dissent would REMAND the case for further proceedings.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA and ALBIN join in JUSTICE ZAZZALI's opinion. JUSTICE WALLACE filed a separate dissenting opinion, in which JUSTICE RIVERA-SOTO joins.

The opinion of the court was delivered by: Justice Zazzali

Argued October 12, 2004

On the day of the terrorist attacks in New York City in September of 2001, Robert Sager was working at a construction site on Long Island, New York, for his employer, a New Jersey contractor. Because the attacks caused the emergency closing of all bridges and tunnels between New York and New Jersey, Sager and several co-workers were unable to return to their New Jersey homes at the end of the scheduled workday. Consequently, at the direction of their employer, Sager and his co-workers left the site for an early dinner. When returning from a local eatery to the site, Sager was seriously injured in an automobile accident.

Although the Judge of Workers' Compensation held that Sager's injuries were compensable, the Appellate Division denied his claim. Because we hold that there was substantial credible evidence to support the determination of compensability, we reverse.

I.

Robert Sager was employed for nineteen years as a carpenter with his employer, O.A. Peterson Construction Company (O.A. Peterson), in Montclair, New Jersey. Sager's position with O.A. Peterson required him to report directly to various job sites where the company was a contractor. On September 11, 2001, Sager was working at a Long Island job site, an assignment that began in July 2001. That morning, he met his on-site supervisor, John Devlin, at Devlin's home in Union, New Jersey. Devlin and Sager carpooled to the Long Island job site in Devlin's personal vehicle, which had been their routine for the prior two months. Their ride to and from the site required use of the Goethals Bridge and the Verrazano Bridge. At approximately 7:00 a.m., they arrived at the job site, joined by two other O.A. Peterson employees who also drove together from their homes in New Jersey. The four employees were scheduled to work at the job site from 7:00 a.m. until 3:30 p.m., with a half-hour lunch break. On that morning, the employees learned of the terrorist attacks shortly after they occurred, at about 9:00 a.m., but the employees continued working. Because of their anxiety about the catastrophic events unfolding just a few miles away, neither Sager nor his co-workers were able to eat during their lunch break.

Due to the abrupt closure of all bridges and tunnels between New York and New Jersey, with no indication as to when they might reopen, the employees were uncertain as to when they would be able to return home. There were no on-site eating facilities and, therefore, Sager and his co-workers left the site at about 3:00 p.m. to have an early dinner. They climbed into a van owned and operated by one of the workers and drove a few miles to a local diner. September 11 was the only day that Sager ever left the site to obtain food at the end of the workday. They finished their meal in about fifteen minutes, and, while driving back to the job site, the van was involved in a head-on collision with another vehicle. Sager suffered femur and knee injuries, and was hospitalized for twelve days.

Subsequently, Sager filed a Claim Petition with the New Jersey Division of Workers' Compensation and a trial was held. John Devlin, the on-site supervisor of the project, testified at trial that it was his decision that everyone leave the site to get something to eat. Devlin testified as follows:

Q: When you went back to the -- when you left you testified you were going back to the job site?

A: Yes.

Q: What was your intention?

A: Going back to work.

Q: Going back to work?

A: Yes.

Q: So you were going to continue working past 3:00?

A: Yeah.

Q: Why would you have gone back to work past 3:00?

A: What else would we have done? There was nothing else to do, you know. We were stuck in New York, you know. So I said we will go out, we will have an early dinner, come back to the job. We will keep working. If we hear that they opened up a bridge or tunnel, jump in the cars and get out of here. So that was my decision, you know.

Q: It was your decision as a supervisor?

A: As a supervisor, yes.

Devlin further testified that it was his understanding that when he left the diner, the bridges and tunnels were still closed. As a result, he intended "to take the three men under [him] back to the job site." That is why he informed the employees that, upon their return from the diner, they were to "continue working on the job." Devlin confirmed that when he "advised the other three men of [his] plan... [no]body object[ed] to working the overtime." Devlin also indicated that, based on his past experience, if ...


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