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Gersh v. Richard Gersh & Associates


March 6, 2008


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 2005-21950, 2006-1593.

Per curiam.


Argued February 13, 2008

Before Judges Winkelstein and Yannotti.

In this workers' compensation case, the question is whether an accident occurring during an off-site working lunch between two married co-workers is compensable. The compensation judge found that the accident was compensable, and the workers' compensation carrier, in the name of its insured, Richard Gersh & Associates, Inc. (Gersh Associates), has appealed. We affirm.

Richard Gersh, husband of the decedent, Arlene Gersh, is an employee of Gersh Associates, a public relations firm. At the time of her death, Mrs. Gersh was the secretary and office administrator for Gersh Associates, in charge of visual material, editing and writing copy, accounting and billing.

On the morning of the accident, June 7, 2005, Mr. Gersh attended a meeting in New York. Upon returning to the office, he took Mrs. Gersh, the only other company employee, to lunch. They planned to discuss the meeting, away from the phones and email. Mr. Gersh intended to inform Mrs. Gersh about the details of the meeting to get her opinion, and so she could prepare a paper for the firm.

They drove from the business office to lunch. Mr. Gersh parked the car at a parking meter, but because they did not have change for the meter, Mrs. Gersh ran across the street to get change at the bank. She was struck by a car and remained hospitalized for several months before she died on November 25, 2005.

Following the accident, Mrs. Gersh filed a workers' compensation claim against Gersh Associates, claiming that she was injured in the course of her employment. She subsequently filed a motion for temporary disability and medical benefits. Hanover Insurance Company was given leave to intervene to seek reimbursement of PIP benefits that it paid to Mrs. Gersh arising out of the accident. After Mrs. Gersh died, Mr. Gersh filed a dependency claim petition.

At trial, Mr. Gersh, the only witness, testified that he and Mrs. Gersh typically had working lunches two or three times a week. They billed their clients for the time spent at the lunches discussing business. Mr. Gersh supported his testimony with his credit card statement, which showed a number of bills from working lunches that he had had with Mrs. Gersh outside of the office.

Following the trial, the workers' compensation judge ordered appellant to pay: $9480 in temporary disability benefits; a $253,846 PIP lien to Hanover; a $59,341 Medicare lien as of the date of the decision; and counsel fees. The court entered judgment in favor of Mr. Gersh on his dependency claim and awarded him dependency benefits of $189,000, plus $3500 in funeral expenses, and counsel fees. In arriving at his decision, the trial judge found Mr. Gersh to be "eminently credible."

On appeal, our review is limited. The decision of an administrative agency is given substantial deference if "'the findings made could reasonably have been reached on sufficient credible evidence present in the record[.]'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The "factual findings and legal conclusions of the [compensation] judge [should not be disturbed] 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).

Under N.J.S.A. 34:15-7, an accident is compensable if it occurs "in the course of employment" and "aris[es] out of" employment. The "course of employment" component concerns "'the time, place, and circumstances of the accident in relation to the employment[,]'" and "arising out of" refers to the causal relationship between employment and the accident. Coleman v. Cycle Transformer Corp., 105 N.J. 285, 288 (1986) (quoting A. Larson, Workmen's Compensation Law, § 6.10 (1985)). To satisfy the "arising out of" requirement, the petitioner must show that "'it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere.'" Id. at 290-91 (quoting Howard v. Harwood's Restaurant Co., 25 N.J. 72, 83 (1957)). In other words, a "but for" test is used to determine a causal connection between the employment and the injury. Id. at 290.

Generally, accidents that do not happen in areas under the employer's control are not within the course of employment. Jumpp, Jr. v. City of Ventnor, 177 N.J. 470, 480-81 (2003). The exception is when the employer directs the employee to perform the off-premises duties. Ibid. If an accident occurs while the employee is in the direct performance of his off-premises duties, the injury is compensable. Ibid. Whether working on or off premises, employees are nevertheless permitted to attend to certain basic needs while remaining in the course of employment; this is known as the minor deviation rule. Id. at 483-84; see also, Ward v. Davidowitz, 191 N.J. Super. 518, 524 (App. Div. 1983) ("There may be special circumstances or arrangements, between employer and employee, which would bring an accident occurring during a trip for lunch away from the employer's premises within the definition of employment contained in N.J.S.A. 34:15-36.").

In evaluating the "arising out of" requirement, New Jersey courts look to three categories of risks that cause injury to employees: distinctly associated; neutral; and personal. Coleman, supra, 105 N.J. at 291-92. The first two categories are compensable, and the third is not. Ibid. The distinctly associated category includes risks that are directly related to employment, like a malfunction in work equipment that causes an injury. Id. at 291. Neutral risks are those that do not originate from employment but "happen to befall the employee during the course of his employment." Ibid. (internal quote omitted). These injuries include acts of god or uncontrollable accidents that occur while the employee is executing his or her job tasks. Id. at 291-92. The last category includes risks that are personal to the employee, such as a heart condition or epilepsy, that lead to injury during the course of executing job tasks. Id. at 292.

Against this background, we conclude that the record supports the trial judge's findings that Arlene Gersh's injury was compensable. The facts were sufficient for the court to conclude that her injury occurred during the course of her employment and arose out of her employment. The trial judge accepted Mr. Gersh's testimony that he and his wife, as employees of the business, were off of the employment premises to engage in a working, business lunch. They were to discuss a meeting Mr. Gersh attended and Mrs. Gersh was to prepare a paper for the firm, with the client being billed for their time. Mrs. Gersh took but a minor deviation from her direct task in order to obtain change for the parking meter so the business lunch could take place. Her risk was a "neutral" risk, not directly associated with her employment, but simply "happened to befall" her during the course of her employment. See Coleman, supra, 105 N.J. at 291.

Appellant's primary argument is that because Mr. and Mrs. Gersh were husband and wife, they were simply engaging in a social lunch. That was not the testimony before the trial judge and that was not what the trial judge concluded. He accepted Mr. Gersh's testimony that they were in the process of attending to a working, business lunch. The Gershes were in the public relations business, and working billable lunches were a normal function of their employment.

The record fully supported the workers' compensation judge's factual and legal conclusions. Appellant's arguments to the contrary are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we affirm.


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