S. NURI DELSON et al. v. GROWING YEARS/WAYNE PRESBYTERIAN GROWING YEARS CHILD DEVELOPMENT FAMILY LEARNING CENTER OF NEW JERSEY t/a GROWING YEARS CHILD DEVELOPMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-6427-03T2

A-6428-03T2

NURI DELSON and

WALTER DELSON,

Petitioners-Appellants,

v.

GROWING YEARS/WAYNE PRESBYTERIAN

GROWING YEARS CHILD DEVELOPMENT

FAMILY LEARNING CENTER OF NEW

JERSEY t/a GROWING YEARS CHILD

DEVELOPMENT,

Respondent-Respondent.

_______________________________________

 

Argued September 28, 2005 - Decided

Before Judges Conley, Weissbard and Sapp-Peterson.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 1994-049170, 1993-031059, 1994-043487.

Harmon H. Lookhoff argued the cause for appellant Nuri Delson (Mr. Lookoff, on the joint brief).

Frederick E. Popovitch argued the cause for appellant Walter Delson (Popovitch & Popovitch, attorneys; Mr. Popovitch, on the joint brief).

Francis T. Giuliano argued the cause for respondent (Mr. Giuliano and David P. Kendall, of counsel and on the brief).

PER CURIAM

This appeal arises from the dismissal of workers' compensation claims filed on behalf of Nuri and Walter Delson. Both were seriously injured when they were involved in a off-premises vehicular accident. In a rather terse oral decision, the workers' compensation judge dismissed the claims pursuant to Jumpp v. City of Ventnor, 177 N.J. 470 (2003). We reverse. In doing so, we conclude that at the time of the accident, Nuri and Walter were engaged in job duties. It is not necessary, therefore, for us to address Walter's additional contentions, alternatively, that he is entitled to compensation because he was compelled by his supervisor, i.e., his father, to be where he was at the time of the accident. See Sager v. OA Peterson Constr. Co., 182 N.J. 156 (2004).

In November 1992, Nuri and Walter were employed by the Wayne Presbyterian Growing Years Child Development Center of New Jersey (Growing Years). Growing Years is a nursery school established in August 1991 by Nuri, his wife Margaret Delson-Rini, and Santo Bonanno, an attorney and friend.

Growing Years uses several rooms in the Wayne Presbyterian Church for its school. However, the church requires the use of the rooms on the weekends. Thus, the school's contract with the church requires the school to remove its equipment from the rooms on Fridays. Nuri would perform this task with Walter's help. Together, they would store the cribs, mats, tables, chairs and other items used by the school and would typically work from 3:00 p.m. until 5:00 p.m. or 6:00 p.m. On Sundays, they would clean the rooms and return the cribs, mats, tables, chairs and other items to their proper location. They worked from approximately 3:00 p.m. to 5:00, sometimes 7:00 p.m.

As of November 1992, Walter, then fourteen years old, had been working at Growing Years for a little more than one year. He was paid for his work with checks issued by Growing Years. Walter believed he typically received a paycheck every two weeks, but he was not sure. He could not remember whether he had filed or signed an income tax return in 1992, but a 1992 income tax return prepared for Walter by an accountant was entered into evidence. Eights checks issued by Growing Years payable to Walter were entered into evidence. They were issued between March 20, 1992, and November 10, 1992.

The accident occurred on Sunday, November 8, 1992. As would be their routine, Nuri and Walter arrived at the school shortly before 3:00 p.m. They had driven there on Nuri's motorcycle. Bonanno was also there to meet with the pastor. He, too, arrived on a motorcycle.

Nuri and Walter worked setting up the nursery school while Bonanno worked in his office. The wheels of some of the cribs had broken off and needed to be repaired. That was not unusual and, in the past, Nuri and Walter had had to purchase new equipment for the cribs to complete the Sunday set-up. They usually did so at a local Channel store. At about 3:30 p.m., all three left the church on their motorcycles.

The purpose for the off-premises venture was hotly contested. The judge characterized it as "the main issue in the case" at a June 12, 2003, proceeding. Inexplicably, the workers' compensation judge made no findings concerning that purpose in her oral decision. Resolution of Nuri's and Walter's entitlement to workers' compensation benefits cannot be made without determining the purpose for the trip. Given the inordinate length of time it took to try this case and the judge's evident lack of recall of all of the evidence, we will not add to the delay by remanding for that fact-finding. We exercise our original jurisdiction and decide that fact.

It is abundantly clear to us, after a thorough examination of all of the transcripts, that the primary purpose for Nuri and Walter was to go to a Channel store to purchase the necessary crib parts, return to the church and complete the set-up for the next day. Nuri, Walter and Bonanno so testified without contradiction. Growing Years points out that Bonanno testified that Nuri came to his office and said he and Walter were going to get a bite to eat, inviting him to go with them. That is not particularly surprising. As it was not Bonanno's job to assist in the set-up, he would have had no occasion to be privy to Nuri and Walter's ultimate job-related objective when Nuri asked him if he wanted to go with them. Likewise, because Walter was hungry and they decided to get something to eat on the way, it would be natural for Nuri to invite his friend without fully explaining that he and Walter needed to purchase the crib parts. In any event, Bonanno did corroborate Nuri and Walter's ultimate purpose for the trip, i.e., to go to Channel after eating, purchase the crib parts and then return to the church. And too, the church's pastor, with whom Bonanno had met before leaving with Nuri and Walter, agreed that that is what they intended to do. While we do not have the advantage of seeing the demeanor of these witnesses, there is not a hint of incredulousness in their testimony.

Growing Years, however, argues that the testimony it put forth during the June 12, 2003, proceeding proves this purpose to be false. It was during that proceeding that it presented two witnesses who plotted the location of the accident site, the location of two Channel stores they said were nearest to the church, the location of the Burger King, and the location of the accident site. The upshot of this was their conclusions that the two nearest Channel stores were within two miles of the church, the Burger King where the three stopped to eat was 8 1/2 miles from the church, and the accident site was 11 1/2 miles from the church. But all of this does not mean they did not ultimately plan to pick up the crib parts so they could finish the set-up that night. Neither does it undercut their credibility.

Continuing with the facts, after leaving the church, they proceeded north on Route 23 and stopped at the first Burger King, about fifteen to twenty minutes later. As we have said, the record shows this was 8 1/2 miles from the church, not a particularly excessive distance. They stayed at the Burger King for fifteen to thirty-five minutes. But before going back to Channel, they rode north on Route 23 for a short time to look at the fall foliage. Bonanno thought they went about seven to ten miles north. Walter believed they drove north for about one minute. Critically, however, it is undisputed that at the time of the accident, they had made a u-turn on Route 23 and were traveling south back to the Channel. The accident occurred at about 5:00 p.m. when a vehicle forced Nuri's motorcycle off the roadway.

There was much evidence presented concerning whether the three could have made a u-turn at the Burger King location and whether, even if there was no issue as to going north to see the fall foliage, Nuri still would have gone north on Route 23 to make a safer u-turn. The workers' compensation judge seems to have thought the choice of going north on Route 23 was dispositive as she made an on-site inspection just for that purpose. As a result of that viewing, she determined that they could have made a u-turn at the Burger King and immediately gone back toward the Channel store. However, the judge failed to resolve the evidence concerning whether, fall foliage or not, Nuri would have gone north to get to the Channel store as he would have thought that a safer route for a u-turn.

In our view, all of this is not material as, in any event, at the time of the accident, Nuri and Walter were on their way to the Channel store to get the necessary parts. This fact, plainly established by the evidence, was ignored by the judge in her legal analysis. Indeed, we have some sense that the judge may have mistakenly thought the three were still going north looking at the foliage at the time of the accident. In this respect, we note her comment during the June 12, 2003, proceeding: "Correct me if I'm wrong, as I recall the testimony, it's now seven years old, they went to Burger King for a burger . . . . Then they got back on 23 . . . and continued north . . . because they're going toward[] the accident."

This is the heart of the judge's decision:

The Court finds after reviewing all the evidence that . . . Jumpp v. City of Ventnor, [ 177 N.J. 470 (2003)], controls here and compels a finding on the facts in this case that Petitioner's lunch[] at Burger King and subsequent decision to take Route 23 north to see fall foliage rather than Route 23 south off the adjacent Kiel Avenue exit is a non-compensable deviation. As stated in Jumpp, supra, [177 N.J. at 483-84]

[w]hether the employer allowed the employee to perform a personal errand during his or her workday does not alter the analysis. In cases involving an alleged minor deviation, the question is not whether the off-premises employee was 'satisfying a personal need, the completion of which is neither incidental to his . . . employment . . . nor beneficial to the employer," . . . but rather, whether that employee has embarked on a personal errand that would have been compensable if carried out by an on-premises employee.

Here Petitioner's deviation was no different from the office worker who takes an afternoon break and takes his motorcycle for a ride to see fall foliage. Neither deviation would be compensable. For the foregoing reasons the case must be dismissed.

We disagree with the judge's legal analysis.

We first address Growing Years' reliance upon Mangigian v. Franz Warner Assoc., Inc., 205 N.J. Super. 422 (App. Div. 1985), and Ward v. Davidowitz, 191 N.J. Super. 518 (App. Div. 1983). Neither Mangigian nor Ward are apposite.

In Mangigian v. Franz Warner Assoc., Inc., supra, 205 N.J. Super. at 424, the worker's compensation claimant was a college student employed during a three-week Christmas break as an investigator. Her job required her to visit retail stores in Rahway, New Jersey. She lived in Pennsylvania. Because her job duties required her to be in Rahway for several days, she was driven there by her supervisor and was to stay at a motel. At the time of the accident that led to her claim, she had completed her investigative duties and had returned to her motel room. She completed required paper work, and visited her supervisor who was also staying at the motel, and then left the motel to buy food at a nearby McDonald's restaurant. On her way back to the motel, she was stuck by an automobile and injured. The Judge of Compensation dismissed the ensuing worker's compensation claim holding that the accident did not occur in the course of petitioner's employment. We affirmed. Id. at 428. We said:

In order to obtain compensation for an off-premises accident, the employee must demonstrate that his injuries were sustained in the "direct performance of [the] duties assigned [to him] or directed by the employer." N.J.S.A. 34:15-36. In that respect, we are fully convinced that the compensation judge's factual finding that petitioner had long completed her work assignment when the accident occurred is fairly supported by substantial credible evidence present in the record.

[Id. at 427 (emphasis added).]

Here, simply put, Nuri and Walter had not "long completed" their work.

Ward v. Davidowitz, supra, 191 N.J. Super. at 520, concerns the compensability of an accident occurring during a lunch break. There, the employee was returning to work from a lunch break in an automobile operated by a fellow employee. The automobile was involved in an accident and the employee was injured. She sued her fellow employee, the driver of the automobile, who raised the workers' compensation bar. The trial judge granted the driver's motion for summary judgment and dismissed the employee's claim. We affirmed, noting that the Legislature intended to eliminate compensability of "going and coming" lunch break accidents with the enactment of the 1979 amendment to the Workers' Compensation Act.

Here, at the time of the accident, Nuri and Walter were on their way to purchase necessary parts to complete their Sunday employment tasks. They were not injured during the course of a "lunch break."

The workers' compensation judge's conclusion that Jumpp v. City of Ventnor, supra, 177 N.J. 470, requires a finding of non-compensability is not correct. Jumpp concerns an off-premises accident. There, petitioner's job duties required him to travel, by way of a city-owned vehicle, to different worksites. During his travels, he stopped each day at the local post office to retrieve his personal mail. One day, after retrieving his mail, he fell before he had returned to his vehicle and resumed his route. The judge of compensation denied petitioner's workers' compensation benefit petition, finding that, although the stop was a minor deviation from the petitioner's responsibilities, "he was engaged in a personal errand and not the 'direct performance of duties assigned or required by [his] employer.'" Id. at 475 (quoting N.J.S.A. 34:15-36). We affirmed. The Supreme Court agreed. It held that "when an employee is assigned to work at locations away from 'the employer's place of employment,' eligibility for workers' compensation benefits generally should be based on a finding that the employee is performing his or her prescribed job duties at the time of the injury." Id. at 482.

The petitioner in Jumpp was not injured during the course of performing his job duties. But Nuri and Walter were. At the time of the accident, they were back on their mission for their employer.

Reversed and remanded for entry of orders granting petitioners' workers' compensation claims.

 

We pause here to express our concern over the length of time it took for the workers' compensation judge to reach a final decision after filing of the complaints in 1993 - almost ten years. There were fourteen days of testimony scattered throughout this period of time. One needs only to read the transcript of June 12, 2003, to see how this affected the workers' compensation judge's ability to recall the prior testimony. That may explain, but certainly not excuse, the judge's three-page factually skimpy oral decision.

One of the few factual findings by the workers' compensation judge was that on the day of the accident, Nuri and Walter "were working for Growing Years." Although Growing Years "does not agree that Walter was such an employee," the record amply supports the judge's finding to the contrary.

We observe here that "lunch" is clearly not the correct characterization of the Burger King stop. It was late afternoon, not lunchtime. A better characterization is an afternoon snack. The difference may seem to be meaningless semantics, but in the workers' compensation context, "lunch" breaks have specific legal consequences.

As our disagreement here is with the judge's legal analysis, and there are no critical fact findings by her for us to defer to, appellate deference is not an issue. Valdez v. Tri-State Furniture, 374 N.J. Super. 223, 232 (App. Div. 2005).

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A-6427-03T2

October 11, 2005