On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, No. 2006-8212.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner and Lyons.
Appellant, Township of Randolph Police Department (Randolph P.D.), appeals from a judgment entered on October 3, 2006, finding that the accident which injured respondent, Andrea DeCoursey (DeCoursey), arose out of and in the course of her employment with appellant. We affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. DeCoursey at all relevant times was a police officer employed by Randolph P.D. On February 14, 2006, DeCoursey was on duty from 7:00 p.m. to 7:00 a.m. During her shift, DeCoursey, in accordance with departmental procedures, asked her supervisor, Sergeant Gary Moore, for authorization to have her dinner at her home. DeCoursey lived in the neighboring municipality within close proximity to the department and was granted authorization to take her meal at her home. The permission to do so was conditioned on her remaining in radio and telephone contact with her supervisor so that she could answer any duty calls that may come in while she was having her meal. During her meal break, she kept her radio within hearing distance so that she could be contacted in case of an emergency.
When DeCoursey finished her meal, she started to return to her patrol vehicle. As she was exiting her home to go to her patrol vehicle, she slipped and fell on black ice, incurring an injury.
DeCoursey filed her claim petition for workers' compensation benefits against the Township of Randolph on March 20, 2006. A hearing was held over the course of three days before a Judge of Workers' Compensation.
Both the Randolph P.D. and DeCoursey agree that she was working a twelve-hour shift on February 14, 2006, and that she was paid on an hourly basis for the entire twelve-hour period. DeCoursey, her supervisor, and a union representative all testified that it was common practice for officers to get authorization to take a lunch break and that the location of the lunch break must also be authorized. All three individuals testified that DeCoursey, at the time of the accident, was "on duty."
The township manager also testified that DeCoursey was on duty on February 14, 2006, and was paid for her twelve-hour shift on an hourly basis. Officer Donovan, the union representative, testified that during meal break periods, officers are not permitted to engage in any personal activities and are still within the supervision and control of their supervisors.
In addition to the testimony outlined above, the Fraternal Order of Police contract with Randolph was marked into evidence. The contract states in pertinent part, in Article X, paragraph A, that, "for the purpose of this Article, injury or illness incurred while the employee is acting in any employer authorized activity, shall be considered in the line of duty."
The Workers' Compensation Judge, in his written decision, found that the facts were not in dispute. The judge found, based on the testimony, that DeCoursey was granted permission to eat dinner at home, which was seven to eight minutes, or five or six miles from the precinct, and two minutes from the Randolph border. The judge also found that all Randolph police officers are paid and under direct supervision and control for their entire twelve-hour shift, including the time that they eat lunch or dinner. The judge noted that DeCoursey, while she was eating dinner, was on duty, was required to keep her radio on so that she would be in direct communication with her supervising officers and was required to respond to any demand made of her during that time frame. Finally, the judge determined that while she was authorized to eat dinner at home, she was not authorized or permitted to perform any personal errands. The judge rejected Randolph P.D.'s argument that all accidents that occur during lunch that are away from the normal work site, do not arise out of, and in the course of, a worker's employment.
The judge, relying on Ward v. Davidowitz, 191 N.J. Super. 518 (App. Div. 1983), found that there were "special circumstances or arrangements" between the employer and employee, which would bring the accident that occurred during the employee's dinner away from the employer's premises within the definition of "employment" contained in the Workers' Compensation Act. The judge noted four special circumstances or arrangements which supported his conclusion. First, he pointed out that all police officers are paid for and are on duty and under the direct supervision of, the department during their entire twelve-hour shift. Secondly, the judge concluded that the arrangement in this case benefits the police department because it does not have to have another officer cover for an officer who is eating lunch or dinner. Thirdly, the judge noted that the Fraternal Order of Police contract between the Township of Randolph and the union provides that an employee who is injured while acting in any employer-authorized activity is considered acting in the line of duty. Lastly, the judge relied upon the Randolph Police Department Operations' Personnel Conduct Policy book, which authorizes police officers to have an occasional meal with a supervisor's permission within a reasonable distance of the Randolph township line, provided that they remain in radio or phone contact with the police communications' desk.
The Workers' Compensation Judge was careful to point out that he did not have jurisdiction to interpret the Fraternal Order of Police contract because of the holding in Perry v. Department of Law and Public Safety, Division of State Police, 153 N.J. 249 (1998), and that he did not base his decision solely on ...