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Mark Defoyd v. Delta Corporation

December 15, 2011


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, C.P. No. 2007-26884

Per curiam.


Submitted October 18, 2011

Before Judges Baxter and Nugent.

Petitioner Mark DeFoyd appeals from the November 17, 2010 Division of Workers' Compensation order for judgment that dismissed his claim following a trial. DeFoyd contends that the injuries he sustained when he was carjacked arose out of and in the course of his employment with respondent Delta Corporation because he was carjacked while on his way to meet a prospective client. Delta disputes that DeFoyd was scheduled to meet a client when he was carjacked and maintains that the carjacking had no connection to DeFoyd's employment. After considering the parties' evidence, the Judge of Compensation (JOC) determined that the carjacking did not arise out of and in the course of DeFoyd's employment with Delta. Because the JOC's decision was based on credibility determinations and supported by sufficient credible evidence in the record, we affirm.

The following evidence was adduced at the workers' compensation trial. Delta, an information technology (IT) consulting firm that contracted with large pharmaceutical companies, hired DeFoyd on August 13, 2007, as an outside account executive whose job involved "go[ing] out and develop[ing] business for the company." Delta expected DeFoyd "to go out and do networking." According to DeFoyd, on August 24, 2007, he was on his way to meet a prospective client when he was carjacked and injured.

DeFoyd testified that during the week before the carjacking he met a prospective client named Ken, a pharmaceutical representative for Bayer, at a Starbucks store. DeFoyd and Ken agreed to meet again at 7:00 p.m. on August 24, 2007, at the Brazilia restaurant in Newark. On his way to the meeting, DeFoyd stopped at a Chinese restaurant to buy a bottle of water. When he returned to his car a man opened the passenger door and beat DeFoyd in the head with an unidentified object until he lost consciousness. When DeFoyd "came to," he exited the car and the carjacker drove off. DeFoyd's company computer and files were in the car.

DeFoyd could not recall Ken's last name or where he worked, so there was no way to locate him. When meeting a prospective client or contact, DeFoyd would log the contact's name and phone numbers into a program on his laptop computer, but because his laptop had been stolen during the carjacking, he could not retrieve Ken's information.

According to DeFoyd, he returned to work on the next business day and told his supervisor, Bob Erianne, about the carjacking. DeFoyd also reported the incident to Human Resources, but could not recall at trial the name of the person with whom he spoke. Delta eventually terminated DeFoyd because he was disabled and could not do his job.

Delta presented four witnesses to refute DeFoyd's testimony that he was driving to a meeting with a prospective client when the carjacking occurred. Delta's chief financial officer and executive director of corporate operations, Sherry Beth Silinger, testified that Bayer was already Delta's client on August 24, 2007. She also testified that when employees put an appointment into their laptop computers, the company's main server is updated with the information. The manager of Delta's IT department retrieved the information from DeFoyd's calendar application; there were no meetings scheduled for August 24, 2007, though there were appointments scheduled on other dates.

As to DeFoyd's termination, Silinger testified she was present when DeFoyd was terminated, and that he was terminated because of his non-attendance at mandatory Monday status meetings and because his skills did not conform with the company's needs. Although she had spoken to DeFoyd several times before he was terminated, DeFoyd never told her that the carjacking arose out of his employment. She did not learn that DeFoyd claimed the carjacking was work-related until after his termination.

Jason Fritzsch, employed by Delta in internal systems support, worked with the servers and work stations used to electronically store the company's data. He personally restored the back-up of DeFoyd's mail items and calendar from a mail server. Fritzsch explained that DeFoyd could have accessed his calendar and mail from a computer other than his laptop. Fritzsch also confirmed that the back-up of DeFoyd's calendar had appointments that DeFoyd had scheduled, but none for August 24, 2007.

Delta's chief operating officer and DeFoyd's direct supervisor, Robert Erianne, testified it was not customary for the sales force to have dinner meetings with business contacts without his prior approval. He confirmed Bayer had been a client of Delta's on and off for approximately eight to ten years, and that DeFoyd did not handle the Bayer account. He also confirmed that he terminated DeFoyd because DeFoyd lacked certain professional skills, was late for meetings, missed meetings entirely, and did not have good retention skills. Finally, Erianne testified that DeFoyd never told him that the carjacking was work-related.

Delta's final witness was Carl Schulz, who held the position of director of business solutions but was the principal consultant in August 2007. Schulz testified that when DeFoyd first returned after the accident, Schulz asked what happened. DeFoyd responded that he was driving to Newark to meet friends for dinner and stopped ...

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