November 7, 2007
QUASHIMA TAYLOR, PETITIONER-RESPONDENT,
METRO FOOD MANAGEMENT, RESPONDENT-APPELLANT.
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Docket No. 2006-007149.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 1, 2007
Before Judges S.L. Reisner, Gilroy and Baxter.
This is a workers' compensation case. Respondent, Metro Food Management, Inc., d/b/a Checkers, a fast-food restaurant, appeals from the order for compensability entered in the Division of Workers' Compensation, Department of Labor and Workforce Development. The order granted petitioner Quashima Taylor's motion for medical treatment, determining that the incident was compensable, and respondent was responsible for all related medical treatment. We affirm.
On March 2006, petitioner filed a claim petition, asserting that she had suffered burns from a grease spill while in the course of her employment. After respondent filed its answer denying the injury arose out of and in the course of petitioner's employment, petitioner filed a motion seeking medical and temporary disability benefits. On consent of the parties, Compensation Judge Pollard bifurcated the matter for the purpose of determining compensability only. A plenary hearing was conducted on the motion at which time the Compensation Judge heard testimony from petitioner, and from respondent's witnesses: Bruce Keehn, respondent's Chief Operating Officer and partner; Marquis Smalley, an employee on duty at time of the incident; and John Carvelli, a New Jersey Manufacturers Insurance Company claims representative, who had obtained a telephone statement from petitioner on January 6, 2006, concerning the incident.
During the hearing, the parties introduced a digital video disc (DVD) containing photographs from the restaurant's security cameras. Some of the photographs show the incident as it occurred from the viewpoint of one standing inside the employees' section of the restaurant, facing the walkup and drive-thru windows. The parties do not dispute the initial facts pertaining to the incident. In fact, the disputed facts, as marked by a timeline depicted on the DVD, are confined to a period of approximately twenty-four seconds.
Petitioner has been employed by respondent for twelve years, the last eight as a manager, and on December 10, 2005, petitioner was employed as the manager of respondent's restaurant in Passaic. The Passaic restaurant has two drive-thru windows and a walk-up window. At approximately 2:37 a.m., a disgruntled customer exited a motor vehicle that was stopped in front of one of the drive-thru windows and went to the walk-up window, complaining about his food order. After petitioner and the customer engaged in a verbal argument, the customer reached through the window and struck petitioner in the face, causing her to fall to the floor.
Petitioner testified that immediately after the assault, the customer threatened to come inside the restaurant to continue the attack. As the customer left the walk-up window and proceeded back to the drive-thru window, petitioner filled a pan with hot grease and brought it to the drive-thru window, not to retaliate against her assailant, but for the purpose of protecting herself. Petitioner testified that the customer opened the window, reached in and tipped the pan against her, causing the grease to spill. Petitioner seeks compensation, not for the initial assault, but for the burns suffered from the hot grease. Petitioner asserts that the DVD supports her version of the events.
Respondent defended the motion, arguing that the incident had not arisen out of and in the course of petitioner's employment because she had engaged in willful misconduct by attempting to attack her assailant with hot grease. Respondent contended that the doors to the interior portion of the restaurant were locked and that the assailant could not have entered the restaurant and caused petitioner any further harm after the initial assault. Respondent asserted that the DVD supported its position that petitioner had unlocked and opened the drive-thru window, intending to throw the grease on her assailant, but that the pan slipped. Respondent denied that the pan was tipped by the assailant.
On November 28, 2006, Compensation Judge Pollard rendered an oral decision concluding that the injury was compensable. The Compensation Judge determined that the injury arose out of and in the course of petitioner's employment because the two incidents, which had occurred approximately twenty-four seconds apart, constituted a single continuing event. A confirming order was entered that day. In reaching his decision the judge stated:
But [in] any event, this individual gets out of the car that he is presumably a passenger in and comes to the one window. And, as clearly seen in the DVD, punches Miss Taylor in the face and knocks her to the ground, hits her with such force that she is knocked to the ground. Now the respondent does not dispute that. That attack is an incident which arose out of and in the course of Miss Taylor's employment. She is knocked to the ground. Now after that, according to Miss Taylor, and I really find her testimony as uncontradicted at this point, that the individual then goes to another window and says I'm going to come in and fuck you up. And Mr. Smally didn't hear those precise words, but he [a]cknowledges the individual did go to yet another window. And at that point, Miss Taylor has lifted up a pan which has hot grease in it and has raised it. And it gets knocked back on her. She said she raised it up, and the individual's arm came through the window and knocked it back. My own view of the pictures indicate[s] to me that at no time did she ever go outside the boundaries of the building. That in fact, it was tipped back on her. Mr. Smally indicates that either this individual tipped it back or it backfired on her and it spilled on her.
So, let us go through some of the elements of this. Miss Taylor has no personal relationship with this assailant. The assailant has never been identified or pursued or located. She is in the middle of her workday. She is doing her job as a manager. She is trying to service the customers or the clients or the guests, I think Mr. Keenan referred to these people as, trying to do her job, maximize the profits of Checkers by moving the line along and is confronted with an individual who is not satisfied and takes it out by getting out of his car and coming to another window to assault her. And then continues that activity by going to yet another window and according to her, threatening her. And I find that you cannot parse that situation out. This is a continuing incident that Miss Taylor, whether she was angry or not or whether she misstated any part of what transpired, nonetheless she was in the course of her employment when this incident arose and when this accident took place.
In this case, the fact that she is assaulted once and then there is a threat of another assault taking place and she has grease poured all over her and causing severe burns, and again we're not talking about at this point the severity of the injury, we're talking about whether or not the injury arose out of and in the course of her employment, and given that you just cannot separate this out and say there is some intent on her part to go elsewhere and outside of her employment, she continued to be in her employment.
On appeal, respondent argues that petitioner's "injuries were the result of her own intentional and violent behavior and were not the result of an accident." Respondent also argues that the Compensation Judge erred "in relying on Thornton V. Chamberlain Manufacturing Corp., 62 N.J. 235 (1973)."
Generally, "[c]courts . . . give 'substantial deference' to administrative determinations." Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999) (quoting R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). In workers' compensation cases, the scope of appellate review is limited to "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Deference must be accorded to the factual findings and legal determinations of the Judge of Compensation unless they are "'manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994) (quoting Rova Farms Resort, Inc., v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 140 N.J. 277 (1995). Simply stated, "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." In re Taylor, 158 N.J. 644, 657 (1999).
"However, where the focus of the dispute is not on credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, our function broadens somewhat." Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.), certif. denied, 122 N.J. 372 (1990). "Where our review of the record 'leaves us with the definite conviction that the judge went so wide of the mark that a mistake must have been made,' we may 'apprise the record as if we were deciding the matter at inception and make our own findings and conclusions.'" Ibid. (quoting Snyder Realty v. BMW of N. Amer., 233 N.J. Super. 65, 69 (App. Div. 1989)).
Respondent argues that the incident is not compensable because it arose from petitioner's "willful intention to injure another." Respondent contends that "the indisputable facts of this case illustrate that [petitioner] was attempting to pour hot grease on her assailant to retaliate for being punched in the face." Respondent asserts that petitioner's injury "is not compensable because it was the result of her own willful misconduct, which misconduct took her outside the scope of her employment," having "chose[n] to unlock a window and throw a pan of hot grease rather than simply remain in the work area, make use of Checker's numerous safety measures, and call the police." Petitioner counters that the evidence supports the Compensation Judge's determination that the accident was a compensable incident. Petitioner contends that she was holding the pan of grease only for the purpose of protecting herself from the assailant who had struck her and had threatened further harm. Petitioner asserts the lapse in time between the initial attack and when the assailant tipped the pan of grease against petitioner was indiscernible.
We have reviewed the arguments raised in light of the entire record and determine that the findings of fact are supported by the record, and that the Judge of Compensation correctly applied the applicable law to the facts. We affirm substantially for the reasons expressed by Compensation Judge Pollard in his oral decision of November 28, 2006. Nevertheless, we add the following comments.
Respondent argues that the Compensation Judge erred in citing Thornton, supra, in support of his decision, contending that in Thornton, the petitioner was the victim of an attack by a former co-employee of the petitioner, whereas here, petitioner was the aggressor. Respondent misconstrues the rationale for which the case was cited.
In Thornton, the petitioner had repeatedly reprimanded a co-employee for failure to wear safety glasses and at several times reported the failures to the employer. Thornton, supra, 62 N.J. at 237. Nine days after petitioner left his employment, he was assaulted by a co-employee off the employer's premises. Ibid. The petitioner was denied workers' compensation benefits "upon a finding that his injuries were not sustained in the course of his employment." Ibid. On appeal, the county court affirmed and so did we. Ibid. The Supreme Court reversed, concluding that:
[t]he sense of the concept is that an injury 'arises' in the course of employment whenever the work in fact envelops the victim with a danger which goes with him when he leaves the course of his employment. When that is so, the accident has its origin in the course of employment, and that fact may remain decisive, notwithstanding that the injurious end accrued after the victim left the physical ambit of his employment. [Id. at 240-41.]
Stated another way, two incidents may be so related in both nature and time that they should be considered a single incident. "'Continuity of cause has been so combined with continuity in time and space that the quarrel from origin to ending must be taken to be one.'" Id. at 240 (quoting Field v. Charmette Knitted Fabric Co., 245 N.Y. 139, 142 (1927)).
Here, the Compensation Judge, after acknowledging that respondent had conceded that the incident where petitioner was struck by the assailant arose out of and in the course of her employment, determined that the grease spill could not be separated from the initial attack, because it was a continuing single incident, which, although separated by twenty-four seconds, was so closely related in time that it had to be taken as one incident. Ibid. We agree.
Respondent contends that notwithstanding the brief period of time between the two incidents, that petitioner acted outside the scope of her employment because she intentionally attempted to throw the hot grease on her assailant, thereby becoming the aggressor, rather than remaining the victim of the initial assault. Respondent asserts that petitioner was not trying to protect herself against a second assault, but was attempting to obtain revenge against the assailant. The Compensation Judge determined otherwise, accepting petitioner's testimony that she had been assaulted, threatened with further harm, and brought the pan of grease to the drive-thru window for protection where it was knocked back on her by the assailant. Although we might come to a different conclusion if we were considering the matter anew, we cannot say that the judge's findings were not supported by the credible evidence based on petitioner's testimony of events.
Respondent argues that photographs from the security cameras support its contention that between the twenty-four seconds from the initial assault and the grease spill, petitioner went from being the victim to being the aggressor, intentionally trying to harm her assailant. We carefully reviewed the photographs. While one may discern that petitioner may have unlocked the drive-thru window, the pictures do not show who opened the window, petitioner or assailant. Nor do the pictures refute petitioner's testimony that the assailant reached in through the open window and tipped the pan back against her. Accordingly, we cannot conclude that the pictures clearly support respondent's contention so as to "'leave us with a definite conviction that the judge went so wide of the mark that a mistake must have been made.'" Manzo, supra, 241 N.J. Super. at 609 (quoting Snyder, supra, 233 N.J. Super. At 69).
The grease was spilled within twenty-four seconds of the original attack. Although petitioner may have acted unwisely when she filled a pan with hot grease, believing that it would serve as a deterrent to a second attack from her assailant, we are satisfied that it occurred out of and in the course of her employment because it was so intertwined with the initial attack as to constitute a single event.
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