On appeal from a Final Order of the Division of Workers' Compensation, Claim Petition No. 00-036635.
Before Judges Skillman, Parrillo and Grall.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2004
Petitioner, Christopher (Jose) Valdez, appeals from an order of the Division of Workers' Compensation that dismissed with prejudice his claim for workman's compensation. In dismissing the claim, the judge held that petitioner failed to prove his injury arose out of and in the course of his employment. Because we find the requisite causal connection between petitioner's injury and employment, we reverse the determination below.
The pertinent facts are as follows. Petitioner began working for respondent, Tri-State Furniture (Tri-State), approximately three months prior to the September 23, 2000 accident that resulted in the subject injury. He was employed primarily as a"wrapper," and his job duties in this capacity included uncrating, unwrapping, repairing, and re-wrapping furniture. As a wrapper, petitioner was not required to operate a forklift.
At the time of the accident, Tri-State was under contract with Federated Department Stores (Federated) to repair and service furniture, which was sold in Federated's department stores. Tri-State, Federated, and a third company, R and M Retail and Manufacturers (R & M), all had their own workspace within the same warehouse. The warehouse was about 300,000 square feet. Tri-State occupied 10,000 square feet in the front, center area of the building. Its workspace was partly divided from the rest of the building by a firewall, but the warehouse was largely open space. Several forklifts, parked approximately 250 feet away from Tri-State's area, were used primarily by Federated and R & M employees to pick up supplies and carts. These forklifts were not used for moving furniture. Instead, furniture was picked up at the back of the warehouse by machines known as cherry-pickers, which were not operated by Tri-State employees, placed on furniture racks, and eventually transported into Tri-State's area through a pulley system.
On Saturday, September 23, 2000, petitioner was working overtime, helping Tri-State's supervisor of major repairs, Ronnie Montero, construct an office within Tri-State's work space. Petitioner had been working overtime with Montero, his immediate supervisor, for several days, and by that Saturday, the office was nearly 50 percent completed. That particular day, petitioner arrived for work at his normal hour, six or seven a.m., and began performing his regular job duties. In the middle of the day, he joined Montero to work on the office. Their specific tasks included hanging sheetrock on the inside of the office, making holes for the windows, and routing the running wires. Most of the sheetrock was located within feet of the office, but an additional supply was located 150 meters away. George Martinez, the operations manager, wanted Montero and petitioner to finish the work quickly. By 3:30 that afternoon, Montero and petitioner were the only two Tri-State employees left in the warehouse. Even Martinez had left. By four p.m., the warehouse was shut down, leaving only petitioner, Montero, and a few maintenance workers.
Petitioner and Montero continued to work on the office until about six p.m., at which point the interior of the office was 95 percent completed. Around that same time, before clocking out for the day, Montero and petitioner decided to operate the forklifts, which were controlled by Federated and parked in Federated's area. Neither was licensed to operate the equipment, nor had they ever done so. Over the next few minutes, as captured by a surveillance camera, Montero and petitioner each drove a forklift around the warehouse but never approached the office or entered Tri-State's area. In fact, the video showed them driving the forklifts in an unorthodox manner at the opposite end of the warehouse. When petitioner realized that he was not able to operate the forks or fully control the levers, he attempted to park the forklift. In the process, the forklift tipped over and crushed petitioner's leg, which had to be amputated. The accident occurred outside of Tri-State's designated area.
According to Martinez, the operations manager, Tri-State employees were all informed of an unwritten policy prohibiting them from operating the forklifts, although at least one employee, Bill Stuber, was authorized to operate the forklifts and, on occasion, used them to transport supplies to and from Tri-State's area. Another unwritten policy supposedly barred Tri-State employees from venturing outside their employer's designated area, but apparently no penalty was ever imposed for violating the ban. Moreover, Martinez never filed an incident report concerning petitioner's forklift accident.
The circumstances and reasons underlying petitioner's and Montero's use of the forklift on September 23 were somewhat in dispute. Petitioner said he decided to use the forklifts in order to move the sheetrock, and because he thought he would be more useful if he knew how to operate the equipment. Both he and Montero chose to initially drive away from the office because there was more room for them to maneuver and familiarize themselves with the controls on the other side of the warehouse. Petitioner thought that eventually the forklifts would be helpful in moving the sheetrock piled right outside the office, to make more room for the exterior work they still had to finish, and in transporting the additional sheetrock piled further away. Although he had not previously driven a forklift and did not know how to do so, petitioner denied ever being told not to operate the forklifts, had heard about other employees using them, and actually saw another Tri-State employee named Ramon on the equipment earlier that day.
Montero corroborated much of petitioner's account. Although Montero was not sure whether they needed more sheetrock than that already piled outside the office, he said they decided to try operating the forklifts because the equipment would be helpful if additional sheetrock had to be moved closer. Because they were under pressure to get the office finished quickly, both he and petitioner were planning to come back the next day to finish the work, which would require more sheetrock. Like petitioner, Montero was never told not to operate the forklifts but had not seen a Tri-State employee using one until that morning, when he saw Ramon on one. Yet a third Tri-State employee, Angel Mejia, indicated that, in the past, he had been instructed to move furniture and supplies with the forklifts, even though he had not been trained to operate them. He too had seen Ramon and other Tri-State employees operating the forklifts.
The judge rejected the explanation that the forklifts were intended to move sheetrock to finish the construction. She concluded instead, from petitioner's own admission that he wanted to learn how to drive the forklift to make him more valuable, that when the accident occurred, petitioner had abandoned his job to satisfy a purely personal interest, namely, to"experiment with a vehicle he was forbidden to use during his regular hours of employment." Specifically, the court found that petitioner had"deliberately and substantially stepped out of his job" and was engaged in an activity"completely unrelated to the job" in an area"away from the site of his employment" on equipment"not owned by or within the control of the respondent," when the forklift he was driving tipped over and crushed his leg. In a supplemental decision following the Supreme Court's then recent holding in Jumpp v. City of Ventnor, 177 N.J. 470 (2003), the judge reaffirmed her initial determination that petitioner's injury was not the result of a minor deviation from his job responsibilities, but rather an intentional and substantial abandonment of his work. This appeal follows.
As a threshold matter, we note that appellate review of a judge or agency's fact-finding is limited. Zahner v. Pathmark Stores, Inc., 321 N.J. Super. 471, 476 (App. Div. 1999). We decide whether the findings made could reasonably have been reached from the credible evidence in the record. Ibid. Deference should be given to those findings of the trial judge that are substantially influenced by his or her opportunity to hear and see witnesses and to have the feel of the case. Ibid. However,"a trial court's interpretation of the law and the legal consequences that flow ...