NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 21, 2013
On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2011-309.
Manuel J. Almeida, Jr., argued the cause for appellant (Rudolph & Kayal, attorneys; Alon
Solon and Mr. Almeida, of counsel and on the brief).
David P. Kendall argued the cause for respondent (Ann DeBellis, attorney; Ms. DeBellis, of counsel; Mr. Kendall, on the brief).
Before Judges Alvarez and St. John.
Petitioner Mary Patterson appeals from the dismissal after trial of her petition seeking workers' compensation benefits from her employer, respondent The Atlantic Club. We affirm.
We glean the following circumstances from the trial record. On September 22, 2010, Patterson was at Atlantic Club's health club premises, where she worked as a personal trainer. She had become a part-time employee approximately twenty days prior to the accident at issue. She trained clients from 6:00 a.m. until 7:00 a.m., from 8:00 a.m. to 11:00, and from 12:00 p.m. until 3:00 p.m. It is not disputed that Patterson was injured at approximately 11:15 a.m., and that her 11:00 a.m. client, Jennifer Grace, never appeared for her session. Patterson claims she was returning exercise bands she had intended to use with her 11:00 a.m. client when she tripped, fell, and broke her wrist. The employer asserts to the contrary, that Patterson was herself working out when she was injured.
A time card was introduced into evidence showing that petitioner punched out of work at 11:00 a.m. Patterson testified that she did not punch out as she was waiting for her client. She acknowledged that when acting as a personal trainer, she is required to wear a black trainer shirt, and that she was not wearing the uniform at the time of the accident. Patterson explained that she had taken off the trainer shirt because of the heat.
The workers' compensation judge, who did not find Patterson to be a credible witness, concluded that although she had not actually physically punched out as of 11:00 a.m., that she had no appointment scheduled, was working out herself, and on the premises for her own purposes, unrelated to her employment. In support of her claim, Patterson presented the testimony of the former manager, Robert Casella, an individual whom the employer fired some time after this event because he submitted time cards for compensation for personal training sessions with a person who was deceased. Casella testified that he altered Patterson's time card, at the employer's request, to indicate that she was punched out and not working at the time she was injured. Because of significant discrepancies in his testimony, the workers' compensation judge did not find him to be a credible witness either. He said Casella had "no credibility with this court whatsoever. As far as the court is concerned, he was caught in a lie about the events of that day when he was shown that the card was not changed for approximately two weeks."
The employer presented the testimony of Kathy Guibord, the general manager, as well as that of Deborah Meyer, one of Patterson's supervisors. Guibord testified that although Patterson had not punched out at the time the accident occurred, Patterson told her that she was working out on her own and was not training anyone when the accident occurred. Both noticed that she was in her own workout clothes when injured, and not in the black trainer's shirt she would have been wearing had she been working with a client.
Although the workers' compensation judge found that when the accident occurred, Patterson was not punched out, he viewed that fact as insignificant. Because he did not find Patterson and her witness to be credible, and he therefore concluded that she was not working when she fell. He considered the detail that she was out of uniform to be significant, observing: "she changed out of her uniform and into her personal clothes because she was on her personal time and no longer working." He therefore ...