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Fabrizio v. Village Supermarket

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 13, 2007

GEORGE C. FABRIZIO, PETITIONER-RESPONDENT,
v.
VILLAGE SUPERMARKET T/A SHOP RITE, RESPONDENT-APPELLANT.

On appeal from the Division of Workers' Compensation, Department of Labor, Claim Petition No. 2004-27230.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 3, 2007

Before Judges Lisa and Simonelli.

Appellant, Village Supermarket, t/a Shop Rite (Shop Rite) appeals from the October 2, 2006 order of the Division of Workers' Compensation (Division) finding petitioner, George C. Fabrizio, suffered a compensable injury under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128. We affirm.

Fabrizio was a high school student working part-time as a grocery clerk at the Shop Rite in Absecon. On August 19, 2004, Fabrizio reported to work for his 8:00 a.m. to 4:30 p.m. shift. Starting at 11:00 a.m., Shop Rite held its annual summer picnic for employees, their families, and customers. The picnic occurred on Shop Rite's parking lot.

A Shop Rite district manager, Robert Belsky, initiated the picnic primarily to reward employees. The picnic was a mandatory annual event and all store managers were involved to varying degrees. Attendance was not required, but Belsky encouraged employees to take part in the festivities. He even arranged for a grill to cook the food. Shop Rite provided free food and a dunk tank for entertainment. Some of the store managers assisted with food preparation and cooking, and actively engaged in the dunk tank. Shop Rite also had additional employees report to work so those who were working could take part in the picnic.

At about 3:00 p.m., Fabrizio was in the store putting stock on the shelves when Belsky approached him and asked if he had anything to eat at the picnic. Although Fabrizio said "yes," Belsky told him there was plenty of food outside and he should "go ahead" and "go outside." When Fabrizio went outside, some people were standing by the dunk tank and called him over. He went over to the dunk tank and threw a softball at it. While doing so, he injured his right knee.

On September 3, 2004, Fabrizio filed a claim petition with the Division. After trial, Judge of Compensation Giovinazzi found that Fabrizio suffered a compensable injury. The judge issued a written opinion dated September 20, 2006, and a final order on October 2, 2006.

On appeal, Shop Rite raises the following arguments:

POINT I

THE PICNIC WAS NOT A REGULAR INCIDENT OF FABRIZIO'S EMPLOYMENT AND THE SOLE PURPOSE OF THE PICNIC AND DUNK TANK WAS TO IMPROVE EMPLOYEE HEALTH AND MORALE.

A. The Picnic Was Not A Regular Incident Of Employment.

B. Shop Rite Did Not Obtain A Benefit Other Than Improved Employee Health And Morale.

POINT II

SHOP RITE DID NOT COMPEL FABRIZIO TO PARTICIPATE IN THE PICNIC AND FABRIZIO DID NOT HAVE AN OBJECTIVELY REASONABLE BELIEF THAT HE WAS REQUIRED TO PARTICIPATE IN THE PICNIC.

We have reviewed the record and conclude that Shop Rite's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Based upon our review of the record, we are satisfied that Judge of Compensation Giovinazzi's findings are well supported by the record; he correctly applied the governing legal principles; and there is no error in his determinations. We affirm substantially for the reasons stated by the judge in his written opinion of September 20, 2006.

Affirmed.

20071113

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