June 24, 2008
GEOFFREY MOTLUCK, PETITIONER-RESPONDENT,
LOCKHEED MARTIN, RESPONDENT-APPELLANT.
On appeal from Department of Labor and Workforce Development, Division of Workers' Compensation, Docket No. 2006-24938.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 2, 2008
Before Judges Parrillo, S.L. Reisner and Baxter.
Respondent Lockheed Martin (LM) appeals from the August 8, 2007 decision of a judge of compensation (JOC) that petitioner Geoffrey Motluck's injuries arose out of and in the course of his employment with LM and were thus compensable under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -142. We affirm.
Petitioner is employed as a computer systems analyst with LM at its Moorestown facility. In late January 2002, LM sent petitioner to San Diego, California for four days with co-employee Quinn Easterbrook to upgrade a computer network at the LM facility there. Easterbrook coordinated the project and served as the lead employee. Once in San Diego, petitioner and Easterbrook coordinated their activities with J.T. Morgan, a LM employee from New Jersey who had been working in California for a few months. Morgan was not working on the same project as petitioner and Easterbrook, but was assigned as a local contact. Expenses during the business trip, including hotel, airfare, food and automobile rental were paid for by LM, which also provided each employee with a company credit card to be used during the San Diego project.
Typically, the three worked twelve to fourteen hour days with no time for leisure activities. According to petitioner, their work day began at about 5:30 a.m. and did not end until the sun was down. After work, petitioner and Easterbrook routinely gathered their belongings, dropped off their computer equipment and laptops at the hotel, went out for dinner, returned to the hotel room, checked e-mails, and went to sleep. Each night, petitioner and Easterbrook tried a different restaurant for dinner. Easterbrook testified that during dinner they normally did not bring their laptops.
On the last scheduled day of the trip, February 2, 2002, petitioner and Easterbrook encountered a problem with the installation. Specifically, one of the main pieces of equipment failed once it was supplied with power. The piece could not be replaced for approximately one to two weeks because it was custom-built and had to be ordered and delivered from the manufacturer. Because petitioner and Easterbrook were returning to New Jersey the following morning, they decided to instruct Morgan, who was going to remain in San Diego, on how to install the replacement part when it arrived.
That night after work, petitioner and Easterbrook called Morgan and informed him about the computer problem. The three decided to go to a local restaurant near the beach. They decided to drive in petitioner's rental car, as it was larger than Morgan's vehicle. Petitioner and Easterbrook's testimony does not specify whose decision it was to relay the installation procedure to Morgan over dinner. Petitioner merely stated that "we," as in petitioner and Easterbrook, "called Morgan" after work.
According to petitioner, the three arrived at the restaurant at approximately 8:30 p.m. There, for about two and one-half hours, they had drinks and discussed how the computer problem was to be resolved. Petitioner conceded that the entire conversation during dinner was "most likely" not limited to work-related topics.
Easterbrook testified that the dinner was not a formal business meeting and that he did not require Morgan's attendance. In fact, if petitioner and Morgan had told him they were too tired to attend, he would not have insisted that they do so. He explained that the installation procedure could easily have been relayed to Morgan the next day over the phone because it was not complicated and therefore a face-to-face meeting was not necessary. According to Easterbrook, dinner with petitioner and Morgan was convenient "because [they] were all located at the same point to be able to discuss things." He described the dinner as a "general meeting" among the three of them "about the day's events and actually about the trip's events, because it was the last day we were there."
After dinner, around 10:00 or 10:30 p.m. according to petitioner, the three left the restaurant together. As they approached the parking lot, Easterbrook observed two individuals standing near their rental car that was parked across the street. Petitioner testified that the men were urinating on the driver's side of the car. After Easterbrook yelled out for the men to step away from the vehicle, he, Morgan and petitioner walked toward the car hoping the men would disperse. According to petitioner, after he identified himself as the owner, one of the unidentified males pushed him twice causing petitioner to collide with two others behind him. Petitioner was then struck from behind and fell to the ground. While on the ground, petitioner was kicked in the face by about four or five men, rendering him unconscious. Easterbrook called 911. Police and ambulance records show that the responding units arrived at approximately 1:50 a.m.
When petitioner regained consciousness, he found himself in an ambulance wearing a neck brace. He was taken to a nearby hospital and spent the night in the emergency room. Tests revealed "multiple fractures to the skull, eye sockets, and nose." Doctors recommended "immediate treatment by a reconstructive surgeon." According to the medical records, petitioner was alert, but intoxicated, with a breathalyzer reading of 0.113 taken at 3:16 a.m. Petitioner was sent to New Jersey on his scheduled flight that day.
In a seventeen-page oral opinion, JOC LaBoy held that "petitioner sustained his burden of proving that his injuries arose out of and in the course of his employment with respondent, and [are], therefore, compensable." He found from the testimony that: petitioner and Easterbrook's business trip to San Diego was a "special mission or assignment ordered, directed and under the control of" LM; and on the night of the assault, the three went to dinner, paid for by LM, in order to discuss "the problem encountered by petitioner with the computer [,]. . . what needed to be done, and . . . the balance of the project."
As such, the JOC concluded, the dinner "was an integral part of the overall special mission assigned" to the employees, and petitioner "was [thus] actually engaged in the direct performance of his employment when the [assault] occurred." According to the JOC, the dinner's purpose was "clear and reasonable based on the fact that Morgan was petitioner's local technical support and was staying in San Diego until his assignment was finished." JOC LaBoy also found that it was reasonable for petitioner to have confronted strangers who were urinating on the rental car. The JOC found it insignificant that the employees did not bring their laptops or that they had drinks with dinner.
After reaching that conclusion, the JOC rejected LM's assertion that "the mere fact that it provided prior authorized medical treatment and temporary disability benefits does not bind [LM] to acceptance of the case under N.J.S.A. 34:15-15." In support of his position, JOC LaBoy quoted Sheffield v. Schering Plough Corp., 146 N.J. 442, 460 (1996), in which the Court held that "when an employer undertakes to advise an injured employee to apply for certain disability or medical benefits that are authorized by the employer, the employer necessarily assumes a further obligation not to divert the employee from the remedies available under the Act."
On appeal, LM argues that: the decision finding the injuries compensable was error; and the "mere fact that [LM] provided petitioner with authorized medical treatment and temporary disability benefits does not bind [LM] to acceptance of the case under N.J.S.A. 34:15-15." As to the first issue, LM maintains that petitioner's injuries were not integrally related to his employment because: (1) the work day had finished and petitioner and Easterbrook had safely returned to their hotel around 8:00 p.m.; (2) petitioner and Easterbrook dropped off all their work-related equipment at the hotel; and (3) Easterbrook, "the lead on the project and petitioner's supervisor while on the trip[,] makes clear that petitioner was neither required nor directed to attend [the dinner] with Morgan and him." In fact, according to LM, Easterbrook "testified that they met for dinner out of convenience."
LM also contends that the testimony of petitioner and Easterbrook establishes that Morgan could have been informed of the proper installation procedure either during that work day or the following day via telephone. Finally, LM points to the police and ambulance report, which both show that emergency personnel arrived around 1:45 a.m., as evidence that "the parties were at the bar/restaurant for well more than two to two and a half hours and were not discussing work matters for the large majority of time there." Therefore, LM argues that because "petitioner was away from the duties and activities of [LM] at the time of the assault, the finding of compensability by the judge of compensation should be reversed."
Our standard of review in workers' compensation cases is deferential. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Specifically, the scope of appellate review is limited to determining:
"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 and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor. [Ibid. (citations omitted).]
As the Court explained in Sager v. O.A. Peterson Construction Co., 182 N.J. 156, 164 (2004), which was also a workers' compensation appeal:
[a]n appellate court may not "engage in an independent assessment of the evidence as if it were the court of first instance."
Findings of fact made by a trial judge "are considered binding on appeal when supported by adequate, substantial and credible evidence." Accordingly, 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. [(citations omitted).]
The Act provides in pertinent part that an employee is entitled to coverage for injuries sustained in an: accident arising out of and in the course of employment . . . without regard to the negligence of the employer, . . . except when . . . recreational or social activities, unless such recreational or social activities are a regular incident of employment and produce a benefit to the employer beyond improvement in employee health and morale, are the natural and proximate cause of the injury or death. [N.J.S.A. 34:15-7 (emphasis added).]
When initially enacted, the Act did not define "employment." Zelasko v. Refrigerated Food Express, 128 N.J. 329, 334 (1992). Thus, in order to constrain the broad reach of liability for employers, the Act was amended in 1979 to "provid[e] genuine reform and meaningful cost containment for New Jersey employers . . . by, among other things, 'sharply curtail[ing compensability for] off-premises accidents.'" Jumpp v. Ventnor, 177 N.J. 470, 476-77 (2003) (citation omitted). Specifically, the amendments "removed from compensability certain cases heretofore held compensable where special hazard existed en route to the employer's premises, off-premises injuries sustained during lunch hour and injuries sustained while traveling at the employer's direction but deviating from a direct line of travel to pursue a purely personal activity." Id. at 477 (citation omitted).
Under the newly enacted amendments, employment was defined as commencing when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment, excluding areas not under the control of the employer; provided, however, when the employee is required by the employer to be away from the employer's place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer . . . .
[N.J.S.A. 34:15-36 (emphasis added).]
The above highlighted language codifies the common law "special missions" rule. Jumpp v. Ventnor, 351 N.J. Super. 44, 49 (App. Div. 2002), aff'd 177 N.J. 470 (2003).
In Walsh v. Ultimate Corp., 231 N.J. Super. 383 (App. Div.), certif. denied, 117 N.J. 92 (1989), we explained the "special missions" rule contained in N.J.S.A. 34:15-36 as follows:
[N.J.S.A. 34:15-36] restricts the liability of an employer for accidents occurring in areas not under its control unless the employee is required to be away from the place of employment, in which event, "the determining element of compensability rests upon the direct performance of duties assigned or directed by the employer rather than on the place of employment." [Id. at 387 (citation omitted).]
Importantly, "[i]n interpreting this statutory exception, [courts] must keep in mind the overriding purpose of N.J.S.A. 34:15-36: 'to impose upon off-site accidents a more restrictive standard of compensability.'" Carberry v. State, Div. of State Police, 279 N.J. Super. 114, 120 (App. Div.)(quoting Ehrgott v. Jones, 208 N.J. Super. 393, 397 (App. Div. 1986)), certif. denied, 141 N.J. 94 (1995).
The record here establishes that petitioner was required by LM to work on the computer systems at its facility in San Diego.
Therefore, under N.J.S.A. 34:15-36, petitioner is deemed to be in the course of employment if he was engaged in the "direct performance of duties assigned or directed by" his employer at the time he was assaulted. See Ohio Cas. Group v. Aetna Cas. & Sur. Co., 213 N.J. Super. 283, 288 (App. Div. 1986). Stated differently, the issue here is whether the February 2, 2002 dinner was in the direct performance of duties assigned or directed by LM.
New Jersey courts have declined to "define the outer limits of the phrase 'direct performance of duties assigned or directed by the employer,' but rather considered that the concept was to be further refined on a case-by-case basis." Walsh, supra, 231 N.J. Super. at 388. Nonetheless, certain guiding principles can be derived from the applicable precedents. First, merely going out for dinner after work strictly for one's personal benefit while on an out-of-state assignment does not fall within the definition of employment under the Act. See Mangigian v. Franz Warner Assoc., Inc., 205 N.J. Super. 422 (App. Div. 1985)(holding that an employee on a business trip was not acting within the scope of employment when, after returning to the hotel at the conclusion of the work day, she was injured while crossing the street to purchase dinner); Ohio Cas. Group, supra, 213 N.J. Super. at 285, 289 (holding that injuries sustained while driving a friend home from employee's hotel during a business trip after the end of the work day were not compensable). On the other hand, if an employee is injured while attending a dinner that his employer required him to attend, the injury is compensable. See Sager, supra, 182 N.J. at 163 (holding that "when an employer directs or requires an employee to undertake an activity, 'that compulsion, standing alone, brings an activity that is otherwise unrelated to work within the scope of employment'").
Although not specifically defining the statutory term "direct performance of duties assigned or directed by the employer," the Court held that the activity need be an "indispensable" part of the performance of the duties assigned or directed by the employer to qualify for the "special mission" exception. Zelasko, supra, 128 N.J. at 337. A year later, the Court described the special mission exception as follows:
When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.
[Carter v. Reynolds, 175 N.J. 402, 417 (2003)(quoting Carberry, supra, N.J. Super. at 120) (emphasis added).]
Accordingly, in order for an injury to be compensable under the "direct performance of duties assigned or directed by the employer" prong of N.J.S.A. 34:15-36, the employee must be engaged in an activity that is an "indispensable" or "integral" part of the performance of the his job duties.
In ruling in petitioner's favor, the JOC distinguished the three cases upon which LM relied, and continues to rely before us on appeal: Novis v. Rosenbluth Travel, 138 N.J. 92 (1994), Walsh, supra, 231 N.J. Super. at 387-91, and Mangigian, supra, 205 N.J. Super. at 424-28. In Novis, compensability was denied when an employee who was on an out-of-town business trip was injured when she slipped on ice in the parking lot on her way into the work location. 138 N.J. at 96. The Court held that the injury was not compensable because the parking lot was shared by several tenants and was not under the control of the employer. Ibid. As the JOC correctly observed, Novis was not decided on "special mission" grounds, but was instead decided on the "areas not under control of the employer" portion of N.J.S.A. 34:15-36. See id. at 94-96. We agree that Novis is consequently distinguishable.
LM also relies upon our decision in Walsh, where compensability was denied even though the employee had work files with him at the time he was killed in a car crash while sightseeing in Australia at his employer's behest in preparation for a work-related relocation there. Walsh, supra, 231 N.J. Super. at 387. Compensability was denied because the employee was not "on duty" when the accident occurred. Id. at 390. We reasoned that Walsh "was not in the course of his employment at the time of his accident as he was not undertaking any obligatory task for employer at the time." Id. at 391. We also held that any benefit to the employer from Walsh becoming acclimated to his surroundings was negligible. Id. at 391.
As the JOC here correctly observed, in Walsh the employer derived no benefit from the activities the employee was engaged in at the time the accident occurred. See id. at 389-90. Here, in contrast, petitioner was injured while departing from a dinner with fellow employees during which the three discussed the very project that was the purpose of the special mission, installation of a computer network. Consequently, we have no difficulty in agreeing with the JOC's conclusion that Walsh too is distinguishable.
The final case upon which LM relied before the JOC is Mangigian. There, we held that the activities of the work day comprising the "special mission" had already concluded when the employee was struck by a car while buying food for herself and her supervisor. Mangigian, supra, 205 N.J. Super. at 424. We held that at the time the employee was injured, she was no longer in the "direct performance" of duties assigned by her employer as N.J.S.A. 34:15-36 requires. Id. at 427. She had fully completed her work assignment and was "safely ensconced" in the motel before she decided to embark on the "purely personal" errand of purchasing food. Id. at 428. We agree with the JOC's reasoning that here, unlike in Mangigian, petitioner was not engaged in a purely personal errand that was unrelated to his work at the time he was injured.
On appeal, LM relies on a fourth case, Ohio Cas. Group, supra, 213 N.J. Super. 283. There, we held that an employee who was on an out-of-state job for his employer was not in the "direct performance" of his duties when he was injured while driving a friend home in the company car. Id. at 285-86. The operative facts there are so different from those here that no discussion of Ohio Casualty is warranted.
We are satisfied, as was the JOC, that none of the precedents upon which LM relies supports its position. We turn now to the JOC's central conclusion that petitioner's activities at the time he was injured satisfy the requirements of N.J.S.A. 34:15-36. We cannot quarrel with JOC LaBoy's factual finding that the purpose of the dinner was not only to eat supper but "also to discuss the problem with the computer on their last day, to discuss what needed to be done and discuss the balance of the project." Nor do we disagree with his finding that having some drinks at dinner and leaving the laptops at the hotel does not convert what is otherwise the direct performance of one's job responsibilities into a social event that is not compensable. In fact, that conclusion is bolstered by the language of N.J.S.A. 34:15-7, which permits coverage even for injuries sustained during "recreational or social activities" when those activities are a "regular incident of employment and produce a benefit to the employer" beyond a mere improvement in employee morale. Nor do we find fault with the compensation judge's determination that the two to three hour discrepancy between the time when petitioner says the dinner meeting ended and the hour when police arrived is fatal to petitioner's claim. As the JOC observed, "no log sheet was introduced to determine the exact time that the police were called," only the time they arrived.
We conclude that the record supports the JOC's conclusion that petitioner was "actually engaged in the direct performance of his employment when the incident occurred" and that "the meeting was an integral part of the overall special mission assigned to these three employees." Neither the fact that the information petitioner and Easterbrook conveyed to Morgan during the dinner could have been conveyed to Morgan by telephone the next day nor the fact that Easterbrook did not demand that petitioner accompany him to dinner changes the fact that the dinner advanced the central purpose and objective of the special mission--completion of the computer networking at LM's San Diego site. That being so, we are satisfied, as was the JOC, that petitioner was involved in the "direct performance" of the special mission at the time he was assaulted, as required by the Act.
In light of our conclusion that the record supports the finding of compensability, we find no need to address the JOC's alternate holding that LM was estopped from denying coverage because it had already authorized twenty months of medical benefits at the time it filed its amended answer denying compensability.
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