NOT FOR PUBLICATION WITHOUT THE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-1686-15T3
BRIAN GRAWEHR,
Petitioner-Respondent,
v.
TOWNSHIP OF EAST HANOVER,
Respondent-Appellant.
________________________________________________________________
Submitted February 14, 2017 – Decided June 29, 2017
Before Judges Rothstadt and Sumners.
On appeal from the Department of Labor,
Division of Workers' Compensation, Claim
Petition No. 2012-28125.
Weiner Lesniak, LLP, attorneys for appellant
(Louis M. Masucci, Jr., on the briefs).
Anthony P. Caivano, attorney for respondent.
PER CURIAM
In this appeal, we are asked to determine whether a worker's
injury sustained at his place of employment on his day off is
compensable under the Workers' Compensation Act (the Act),
N.J.S.A. 34:15-1 to -146, when the worker performed a function
incidental to his employment while on the employer's premises. We
hold that the injury is compensable.
Employer Township of East Hanover appeals from a
determination of compensability and award for partial disability
made by a judge of compensation to Brian Grawehr, a township police
officer. The judge found that Grawehr was at police headquarters
to perform a service that was a benefit to the township before his
fall in a municipal parking lot. The township argues on appeal
that the judge's determination of compensability was in error
because at the time Grawehr was injured, he was on a day off and
at headquarters for purely personal reasons, his injury did not
arise from the course of his employment, and the township did not
receive any benefit from Grawehr's presence at headquarters that
day. It also contends the judge of compensation's comments about
the applicability of the Tort Claims Act (TCA), N.J.S.A. 59:1-1
to 12-3, demonstrated "prejudice[]" against the township.
Grawehr filed a petition for benefits after he slipped and
fell on ice in a parking lot at the police department's
headquarters, causing him to suffer injuries to his shoulder that
required surgery. When the township denied that his injury arose
out of his employment, the judge of compensation scheduled a trial
as to compensability only.
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The contested issue at the trial was Grawehr's reason for
going to headquarters. At the trial, Grawehr, the police chief,
and a lieutenant testified, as did the municipal court
administrator. Grawehr testified that he went to headquarters on
December 9, 2011, a day he was not scheduled to work. There was
no official reason for being in the office that day. According
to Grawehr, he went to the office to pick up his pay stub and to
check his personal folder for any new subpoenas to ensure he would
not be disciplined for missing a scheduled court date, as he was
aware of other officers facing discipline problems because of not
appearing.
Grawehr, the police chief, and the municipal court
administrator confirmed that there were problems with police
officers missing scheduled appearances due to the then-recent
merger of the township's municipal court with neighboring Township
of Hanover's court. The merger created a "chaotic" situation and
tension between the township's police department and Hanover's
municipal court personnel. Problems involving scheduling and
officers' court appearances continued through December 2011.
There was no evidence, however, that Grawehr ever failed to appear.
Moreover, there was no immediate court date scheduled as the next
session was to be held no sooner than December 22.
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There was also testimony adduced at the trial about the police
department's handling of its officers' court appearances. For
example, an officer's appearances in court was usually scheduled
for days when he or she was on duty. Also, while officers were
required to check their schedules and files for subpoenas, there
was no requirement that they come to headquarters on their day off
for that purpose. However, according to the lieutenant who
testified, it was "not uncommon" for police officers – especially
the "diligent" ones – to come in on their days off to do work
related activity. In fact, the lieutenant would regularly go into
work when he was not scheduled to be there to check his own file.
After considering the testimony, on May 2, 2014, the judge
of compensation found that Grawehr's injury was compensable,
placing his reasons on the record on that date. The judge
recounted the facts, made credibility determinations, and found
that Grawehr's actions on the day he fell were performed as a
"benefit to the employer," even though the officer was "killing
two birds with one stone" by also stopping at work to pick up his
pay stub. According to the judge, it was "clearly of benefit to
the employer to have officers paying attention to their
responsibilities and checking [their file] even on . . . off
times." On December 11, 2015, the judge entered a final order
finding Grawehr 27 1/2% disabled arising from the "permanent
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residuals" from his shoulder injury and awarding $41,187 for the
disability as well as medical expenses. This appeal followed.1
In our review of workers' compensation courts' decisions, we
generally give substantial deference to their determinations,
limiting our review to "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 . . .
their credibility." Lindquist v. City of Jersey City Fire Dep't.,
175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J.
589, 599 (1965)). "Deference must be accorded . . . unless . . .
'manifestly unsupported by or inconsistent with competent relevant
and reasonably credible evidence as to offend the interests of
justice.'" Ibid. (quoting Perez v. Monmouth Cable Vision, 278
N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J.
277 (1995)). "[T]he judge of compensation's legal findings are
not entitled to any deference and, thus, are reviewed de novo."
Hersh v. Cty. of Morris, 217 N.J. 236, 243 (2014).
1
The township originally filed its appeal from the
compensability determination, which we dismissed as premature.
After the final order was entered, the township moved for
reconsideration and reinstatement of the appeal. We granted the
motion.
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Based upon our careful review of the record and applicable
legal principles, we "conclude that all of the[] factual
determinations made by the workers' compensation judge were
supported by substantial credible evidence in the record 'and
[were] not so wide off the mark as to be manifestly mistaken.'"
Acikgoz v. N.J. Tpk. Auth., 398 N.J. Super. 79, 87 (App. Div.)
(second alteration in original) (quoting Tlumac v. High Bridge
Stone, 187 N.J. 567, 573 (2006)), certif. denied, 195 N.J. 418
(2008); see also R. 2:11-3(e)(1)(D). We affirm substantially for
the reasons expressed by the judge of compensation. We add only
the following comments.
Injuries sustained by an employee in an employer's parking
lot are compensable if they are sustained "in the course of
employment," before or after the actual work day begins or ends.
Konitch v. Hartung, 81 N.J. Super. 376, 382-83 (App. Div. 1963),
certif. denied, 41 N.J. 389 (1964); accord Bradley v. State, 344
N.J. Super. 568, 575-76 (App. Div. 2001). They are compensable
because entitlement to workers' compensation benefits is
controlled by the "premises rule" set forth in N.J.S.A. 34:15-36.
See Kristiansen v. Morgan, 153 N.J. 298, 316-17 (1998), modified,
158 N.J. 681 (1999). The Act provides that "[e]mployment shall
be deemed to commence when an employee arrives at the employer's
place of employment to report for work and shall terminate when
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the employee leaves the employer's place of employment, excluding
areas not under the control of the employer . . . ." N.J.S.A.
34:15-36. The fact that "the injured employee may have been 'off
the clock' does not automatically preclude compensability because
the situs of the accident is a dispositive factor," Acikgoz, supra,
398 N.J. Super. at 88, as long as the employee is injured in an
"accident arising out of and in the course of employment[.]"
N.J.S.A. 34:15-7.
An injury arises out of the employment if "it is more probable
that the injury would not have occurred under the normal
circumstances of everyday life outside of the employment[.]"
Coleman v. Cycle Transformer Corp., 105 N.J. 285, 291 (1986)
(emphasis in original). "An accident arises 'in the course of'
employment when it occurs (a) within the period of the employment
and (b) at a place where the employee may reasonably be, and (c)
while he is reasonably fulfilling the duties of the employment,
or doing something incidental thereto." Crotty v. Driver Harris
Co., 49 N.J. Super. 60, 69 (App. Div.) (emphasis added), certif.
denied, 27 N.J. 75 (1958). "A corollary to this rule is that an
injury is compensable if it 'arises out of a risk which is
reasonably incidental to the conditions and circumstances of the
employment.'" Salierno v. Micro Stamping Co., 136 N.J. Super.
172, 176 (App. Div. 1975) (quoting Buerkle v. United Parcel Serv.,
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26 N.J. Super. 404, 407 (App. Div. 1953)), aff'd, 72 N.J. 205
(1977). "An employee does not have to be actually engaged in work
for the employer at the time of the accident." Ibid. (citing Van
Note v. Combs, 24 N.J. Super. 529, 533 (App. Div. 1953)).
However, the mere fact that a petitioner's injuries are
sustained at work does not satisfy the requirements of the Act.
"[T]o trigger coverage under workers' compensation there must be
a causal connection between the accident and the employment. Situs
alone is not enough." Mule v. N.J. Mfrs. Ins. Co., 356 N.J. Super.
389, 397 (App. Div. 2003).
To find the requisite causal connection
between the employment and the injury, "[i]t
must be established that the work was at least
a contributing cause of the injury and that
the risk of the occurrence was reasonably
incident to the employment." [Coleman, supra,
105 N.J. at 290.] New Jersey has adopted the
"but for" or "positional-risk" test. Ibid.
"'But for' connotes a standard of reasonable
probability. Thus stated, the question is
whether it is more probably true than not that
the injury would have occurred during the time
and place of employment rather than
elsewhere." Howard v. Harwood's Rest. Co.,
25 N.J. 72, 83 (1957).
[Sexton v. Cty. of Cumberland/Cumberland
Manor, 404 N.J. Super. 542, 549 (App. Div.
2009) (first alteration in original).]
An injury incurred at the employer's premises as a result of
the worker performing a task that was mutually beneficial to the
him and his employer is compensable, even if it occurs after work
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hours, see Salierno, supra, 136 N.J. Super. at 176-77 (holding
that a heart attack experienced by a worker during contract
negotiations on behalf of his union was compensable), as long as
the injury arises "from or be contributed to by conditions which
bear some essential relation to the work or its nature." Stroka
v. United Airlines, 364 N.J. Super. 333, 339-40 (App. Div. 2003)
(quoting Williams v. W. Elec. Co., 178 N.J. Super. 571, 585 (App.
Div.), certif. denied, 87 N.J. 380 (1981)), certif. denied, 179
N.J. 313 (2004).
Applying these guiding principles, we conclude that Grawehr
was injured during the course of having performed a function that
was at least mutually beneficial to him and his employer by taking
time out to review his file for any upcoming court appearances,
especially in light of the chaos that existed because of the
municipal court mergers. Under these circumstances, Grawehr's
injuries were compensable as he would not have otherwise sustained
his injury if he was not performing that function at his place of
employment.
Turning to the township's remaining argument about the judge
of compensation's comment regarding the TCA, we too are perplexed
by the judge's discussion of that act and its applicability to
Grawehr's petition. However, we discern no prejudice to the
township arising from that discussion.
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Affirmed.
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