ALAN LONGSTREET VS. COUNTY OF MERCER (DIVISION OF WORKERS' COMPENSATION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3361-15T2

ALAN LONGSTREET,

Petitioner-Respondent,

v.

COUNTY OF MERCER,

Respondent-Appellant.

__________________________________

Argued May 9, 2017 – Decided June 20, 2017

Before Judges Fisher, Leone and Moynihan.

On appeal from the Division of Worker's
Compensation, Department of Labor, Claim
Petition No. 2015-7384.

Lora V. Northen argued the cause for appellant
(Capehart & Scatchard, P.A., attorneys; Ms.
Northen, of counsel; John W. Pszwaro, on the
briefs).

Gary E. Adams argued the cause for respondent
(Pellettieri, Rabstein and Altman, attorneys;
Mr. Adams, on the brief).

PER CURIAM

Respondent, County of Mercer, appeals from the workers'

compensation court's holding that petitioner, Alan Longstreet,
suffered a compensable work-related injury while plowing snow on

Nursery Road in West Trenton on January 27, 2015. We find that

the evidence does not support the court's conclusions regarding

the circumstances of the accident, and reverse and remand the case

for a new trial.

Petitioner was employed by the County of Mercer as an asphalt

heavy equipment operator. He testified that at midnight on January

27 he switched from loading salt with a front-end loader to plowing

snow in a road grader. Petitioner claims he was injured while

operating the grader when he hit what he believed to be a manhole

cover on Nursery Road at approximately 4:00 a.m. The force of the

collision snapped both blades of the grader. After speaking with

his supervisor, he brought the vehicle to the garage for repair.

Petitioner filled out a repair request and a number of mechanics

immediately repaired the blades. Although petitioner was told to

put the machine back on the road after the repair was completed,

he "no longer did anymore operation with that unit," because the

snow removal process was completed. He drove his own vehicle to

the location where he believed the accident occurred at 10:00 a.m.

He ended his workday at 3:00 p.m.

In her initial decision, the judge found that petitioner's

shift on January 26, 2015, started at 7:00 p.m. and was scheduled

to end at 3:30 p.m. on January 27. The judge acknowledged that

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"company records," introduced during the testimony of Al Rhodes

on August 13, 2015, confirmed that petitioner was originally

assigned to load salt utilizing front end loader #281; he was

instructed at around midnight to begin snow plow operations in

grader #57.

The judge found the County's "business records," introduced

during Chris Markley's testimony, substantiated that petitioner

brought a grader to the County's repair shop for the repair of

broken blades. The repair order was initialed by petitioner, and

identified the damaged vehicle as a 2003 New Holland grader. The

number 57 appears at the top of the form.

Janel Bisacquino, a Geographical Information Systems

Specialist II employed by the County, also testified and, from

that testimony, the judge found that the County's global

positioning system (GPS) records showed grader #57 was parked at

the North Salt Dome at Mercer County Airport at around midnight.1

At around 2:00 a.m. it was moved to2 Interstate 953 where it

1
Bisacquino testified that at 12:24 a.m., the vehicle was at 104
Mercer County Airport.
2
Bisacquino testified the GPS records indicated the vehicle was
on "I95" at 1:59:55 a.m.
3
In her amplified decision, the judge concluded, "The GPS tracking
information report showed that Vehicle #57 moved . . . to the
[County's] salt dome at around midnight . . . and then it did not

3 A-3361-15T2
remained, stationary, until 6:38 a.m. Records indicate it was on

Nursery Road only on four separate occasions between 7:30 a.m. and

10:17 a.m.

The judge concluded that the New Holland grader was not the

same vehicle as grader #57, and drew a negative inference from the

County's failure to produce GPS data for the 2003 New Holland

grader. After commenting that the County did not "set forth a

logical alternative factual proposition" to counter petitioner's

version of events, the judge opined:

Here, the only logical conclusion that can be
drawn from the [County] proving that vehicle
#57 didn’t move before 6:38 a.m. and the
Petitioner proving that he limped a New
Holland Grader 2003 into the repair shop with
broken blades is that the Petitioner did not
drive the Grader that he was assigned to use
prior to 6:38 a.m. The Court, therefore, finds
that the Petitioner has produced sufficient
credible evidence to show that he was involved
in a work related accident while operating the
New Holland Grader 2003 and as a result of
that accident, the blades were damaged and
needed to be repaired.

The judge filed an amplification of her decision pursuant to

Rule 2:5-1(b). She clarified that petitioner "used, at least, two

vehicles over the course of his shift." Reiterating her finding

that grader #57 did not move until 6:38 a.m., she surmised:

move again until around 6:38 a.m. . . . ." She did not mention
the movement of the vehicle to Interstate 95, as she had in her
initial decision.

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 The GPS tracking information did not exclude
the possibility that the Petitioner could have
begun using Vehicle #57 at around midnight,
switched to the vehicle he brought into the
repair shop, then, after he had his accident
and brought the vehicle into the repair shop,
switched back to vehicle #57.

We are mindful of our standard of review. We need determine

"'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." Close

v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation omitted); see

also Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004).

Only if the factual findings and legal conclusions of the trial

judge are "manifestly unsupported by or inconsistent with

competent, relevant and reasonably credible evidence as to offend

the interests of justice," will they be disturbed on appeal. Rova

Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

After careful scrutiny, we are compelled to find that there

is no evidence to support the judge's finding that petitioner

began plow operations in grader #57 around midnight, switched to

another vehicle—a 2003 New Holland grader—that he brought to the

shop for repair, and then switched back to grader #57. That

conclusion does not account for petitioner's testimony he drove

only three vehicles that night: the front-end loader he used to

5 A-3361-15T2
load salt, the grader he used to plow snow, and his personal

vehicle he used to visit the accident scene. It does not consider

that he never claimed he operated two different graders, and that

he testified he did not plow snow after the accident. It does not

explain why the repair order for the 2003 New Holland grader has

the number "57" on the top of the form. The judge's finding that

petitioner drove two separate snow plowing vehicles cannot explain

away the evidence from both parties that petitioner drove only one

snow plowing vehicle that evening. Thus, the judge failed to

resolve the discrepancy raised by the GPS evidence that showed

grader #57 was not in operation, and was not on Nursery Road, at

the time petitioner said the accident occurred. An inference by

a judge must be a deduction of fact that is reasonably and

logically drawn from another fact or group of facts established

by the evidence. Rapp v. Pub. Serv. Coordinated Transp., Inc.,

15 N.J. Super. 305, 317 (App. Div. 1951), aff'd, 9 N.J. 11 (1952).

No evidence supports an inference that petitioner drove two snow

plowing graders.4

We are satisfied the case must be reversed and remanded for

a new trial. We recognize that it would be a difficult and

4
This is not a case where the judge made credibility findings and
based her conclusions thereon. We would certainly defer to those
findings.

6 A-3361-15T2
uncomfortable task for the judge to consider the evidence anew in

light of, as made more apparent by her amplified decision, the

judge's deep-rooted stance on the proofs. We, therefore, order

the matter to be tried before a different judge. R. 1:12-1(d).

Since we find that the trial court's decision that petitioner

drove more than one grader is without evidential support, we also

find that the judge was mistaken in drawing a negative inference

based on the County's failure to produce documents and GPS

information for the 2003 New Holland grader. The County's evidence

was that the 2003 New Holland grader and grader #57 were two names

for the same vehicle, for which the County did produce GPS

information. Absent evidence that they were different vehicles,

and that petitioner drove more than one vehicle, it was an abuse

of discretion to draw that negative inference.5 See N.J. Div. of

Child Prot. & Permanency v. K.G., 445 N.J. Super. 324, 342 (App.

Div.) (stating that appellate courts "review a trial judge's

evidentiary rulings for abuse of discretion"), certif. denied, 228

N.J. 38 (2016); Bldg. Materials Corp. of Am. v. Allstate Ins. Co.,

5
Although the court, in her amplified decision, said that she
"did not need to resort to any adverse inferences," she also said
she could not "ignore" the County's failure to determine the
location of the vehicle, the license plate and make and model of
which were set forth on the repair order, on the night in question.
This indicates that she did negatively consider the County's
failure to take that step.

7 A-3361-15T2
424 N.J. Super. 448, 474 (App. Div.)(applying an abuse of

discretion standard for adverse inference rulings), certif.

denied, 212 N.J. 198 (2012).

The County also claims the judge mistakenly considered Dr.

Weiss's testimony regarding the causal relation between

petitioner's injuries and the accident to be more persuasive than

the contrary testimony given by Dr. Hu, because Dr. Hu was the

treating physician. We need not consider that claim because we

are reversing the compensation order on other grounds and remanding

for a new trial before a different judge, who may consider

bifurcating this issue and resolving, first, whether petitioner

was involved in a compensable accident.

Reversed and remanded for proceedings consistent with this

opinion. We do not retain jurisdiction.

8 A-3361-15T2