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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...