JENNIFER ROSE v. JOEY SINOPOLI'S HAIRCUTTERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0049-05T10049-05T1

JENNIFER ROSE,

Respondent,

v.

JOEY SINOPOLI'S HAIRCUTTERS,

Appellant.

_______________________________________

 

Argued July 24, 2006 - Decided August 14, 2006

Before Judges C.S. Fisher and Grall.

On appeal from Final Decision of

the Department of Labor, Division of

Workers' Compensation.

Mark B. Spivak argued the cause for

appellant (Marshall, Dennehey, Warner,

Coleman & Goggin, attorneys; Mr. Spivak,

on the brief).

Michael S. Paduano argued the cause for

respondent (George T. Kotch, P.C., attorneys; Mr. Paduano, on the brief).

PER CURIAM

Joey Sinopoli's Haircutters (the Shop) appeals from a final order of the Division of Workers' Compensation in favor of its former employee Jennifer Rose. The Shop argues that the judge of compensation erred in concluding that Rose's accident was one "arising out of and in the course of [her] employment" and compensable under the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -128. N.J.S.A. 34:15-7. We affirm substantially for the reasons stated by Judge Goldman.

The Shop is one of several stores in a strip mall along Route 9. When Rose arrived at work on the morning of November 11, 2001, she parked in the lot of the mall, between the highway and the storefronts. She got out of her car and went to the passenger side door to get the coffee that she had purchased on her way to work, as she had done everyday for several years. As she opened the door on the passenger side of the car, a truck veered off the highway and struck her. She sustained serious injuries that required surgery, including amputation of one leg.

Rose and her employer, Sinopoli, were the only witnesses at the hearing on compensability. Judge Goldman found their testimony to be credible and "basically" consistent.

Rose had been purchasing coffee for her co-workers on her way to work for several years. She took on the responsibility of bringing in the morning coffee when the Shop's coffee maker broke. Rose knew who was expected to be at work on any given day and who wanted coffee. She stopped at a Dunkin' Donuts store along her route from home to work to purchase the coffee required. Although Sinopoli was not a coffee drinker, he paid for the coffee Rose purchased and delivered. Sinopoli acknowledged that if Rose had not stopped to pick-up the morning coffee, he or another employee would have left the Shop to get it. Rose acknowledged that no one had directed her to get the coffee on the day of her accident. She explained, "It was just something I did." Sinopoli did not pay her for the time spent stopping at Dunkin' Donuts or for her delivery service.

Judge Goldman found that Rose had "every reasonable expectation" that she would be sent for coffee if she did not stop to get it on her way to work. He concluded that she "reasonably felt that [it] was incumbent upon her to bring the coffee." From the fact that Sinopoli paid for the coffee, Judge Goldman concluded that the employer benefited from Rose's mission and had been benefiting from that mission ever since the Shop's coffee maker broke. The judge also found that, but for the task of collecting and delivering the coffee, Rose would not have been at the passenger side of her car when she was struck by the truck.

On that basis, Judge Goldman determined that Rose's accident was compensable as one "arising out of and in the course of employment," N.J.S.A. 34:15-7, because she was "engaged in the direct performance of duties assigned or directed by the employer" away from the place of employment, N.J.S.A. 34:15-36. Judge Goldman found that Rose had a "special mission" to purchase and deliver the coffee consumed by her co-workers. He concluded that performance of that "special mission" exposed her to a neutral risk, the veering truck, and that, but for her mission, she would not have been at the passenger door of her car when struck by the truck. Because the judge's factual findings are supported by the record and his conclusions are consistent with controlling legal principles, we affirm substantially for the reasons stated in his written decision of March 4, 2004. Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004).

We add only that Judge Goldman's decision presages more recent holdings of the Supreme Court that "recognize[] that an employer always retains the power to expand the scope of employment by directing the employee to engage in tasks outside of the employee's general job duties." Lozano v. Frank DeLuca Constr., 178 N.J. 513, 531 (2004) (citing 2 Arthur Larson, Larson's Workers' Compensation Law 27.04[4] at 27-42 (2000)); see Sager, supra, 182 N.J. at 165 (quoting Lozano).

In Lozano the Court held that despite the statutory bar against recovery for injuries sustained during recreational and social activity, "when an employee establishes that his or her employer required participation in an activity of a recreational or social nature, courts should consider the activity as they would any other compensable work-related assignment." Lozano, supra, 178 N.J. at 533; see N.J.S.A. 34:15-7 (exclusion). An employee injured in the course of such an activity must show "that the activity is a regular incident of employment and provides some benefit to the employer beyond the improvement in employee health and morale." Ibid. Where, as here, the "employee alleges indirect or implicit compulsion, . . . the employee must demonstrate an objectively reasonable basis in fact for believing that the employer . . . compelled" the conduct. Id. at 534. Judge Goldman found that Rose made that showing.

In Sager, the Court "reaffirm[ed] the principle that when an employer directs or requires an employee to undertake an activity, 'that compulsion, standing alone, brings an activity that is otherwise unrelated to work within the scope of employment.'" Sager, supra, 182 N.J. at 163 (quoting Lozano, supra, 178 N.J. at 532). Applying "that straightforward rationale," the Court deemed it unnecessary "to consider the compensation court's 'special mission' reasoning" to determine whether an injury sustained by a worker was compensable. Id. at 163. In that case, the supervisor of a construction site had directed the workers to stop work, leave the job, take an early dinner and return to work. The supervisor and the employees got into one van and traveled to a diner. Id. at 158-61. The employee was seriously injured in a car accident on the return trip. Id. at 158. The Court confirmed that the critical question under Lozano is whether there is an "objectively reasonable basis" for the employee to believe that conduct away from the workplace is compelled by the employer. Id. at 168. In that case, the Court concluded that a remand for findings about the employee's reasonable belief was unnecessary because the supervisor had acknowledged that he directed the excursion. Id. at 168.

In this case, a remand is unnecessary because Judge Goldman expressly found the facts essential to application of the rule established in Lozano. He found that Rose "reasonably felt that [it] was incumbent upon her to bring the coffee" and that her compliance provided a benefit to her employer.

This is not a case in which one employee decided to treat the others on a daily basis or to do a favor for them by picking up coffee subject to reimbursement. As Judge Goldman noted, an employer who simply tolerates that type of cooperative activity among co-workers would not subject his or her business to liability under the Act for injuries sustained as a consequence. Under the facts as Judge Goldman found them to be, this case is quite different. In picking up the morning coffee, Rose was doing something that the employer would have done himself or asked another employee to do if she did not. It was done at the employer's expense. Although the precise nature of the benefit the employer expected to receive by providing coffee is not established by the record, Judge Goldman's conclusion that there was a benefit to the employer is reasonably inferred from the evidence. Sinopoli preferred paying for the coffee Rose purchased on a daily basis to buying a coffee maker, allowing the individual employees to leave the shop to buy their own coffee or requiring them to either bring their own coffee with them or do without it. He acknowledged that he would have made other arrangements to have the coffee delivered if Rose had refused. Thus, Judge Goldman's conclusion that Rose reasonably understood her duties to include the morning stop for coffee is well supported.

We reject Sinopoli's claim that Judge Goldman's ruling rests on an assumption or establishment of a rule that obligates an employer to supply coffee. The judge's holding is based on the fact that the employer wanted and expected Rose to provide the service.

Sinopoli's claim that Rose sustained the injury as a consequence of her own personal proclivity for coffee consumption is equally without merit. At the moment of her catastrophic accident, Rose was retrieving from the passenger side of her car the coffee that her employer expected her to bring to the Shop for her co-workers. We see no similarity between this case and Coleman v. Cycle Transformer Corp., 105 N.J. 285, 291-95 (1986), the case upon which Sinopoli relies. In Coleman the fact that the smoker set her hair afire in the workplace was a coincidence not a consequence of a neutral risk to which she was exposed at work. Id. at 294-95.

Affirmed.

 

(continued)

(continued)

8

A-0049-05T1

August 14, 2006