LISA TRAUTMAN v. MARPAL DISPOSAL/REPUBLIC SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2525-08T12525-08T1

LISA TRAUTMAN,

Appellant,

v.

MARPAL DISPOSAL/REPUBLIC

SERVICES,

Respondent.

_____________________________________________________________

 

Argued June 2, 2009 - Decided

Before Judges Skillman and Graves.

On appeal from Division of Workers'

Compensation, Department of Labor, Claim

Petition No. 2006-32266.

Thomas DeSeno argued the cause for appellant

(Gill and Chamas, LLC, attorneys; David H.

Lande, of counsel and on the brief).

Anne M. Hammill-Pasqua argued the cause for

respondent (Capehart & Scatchard, P.A.,

attorneys; John H. Geaney, of counsel;

Ms. Hammill-Pasqua, on the brief).

PER CURIAM

Petitioner, Lisa Trautman, appeals from an order entered in the Division of Workers' Compensation on January 6, 2009, dismissing her claim for injuries sustained while employed by Marpal Disposal/Republic Services (Marpal). The Judge of Compensation found that petitioner's injuries were not compensable because she was engaged in a purely social activity when she was assaulted in Atlantic City on November 16, 2006. We reverse.

N.J.S.A. 34:15-7 provides, in pertinent part:

When employer and employee shall by agreement, either express or implied, as hereinafter provided, accept the provisions of this article[,] compensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of employment shall be made by the employer without regard to the negligence of the employer, according to the schedule contained in sections 34:15-12 and 34:15-13 of this Title in all cases except . . . when recreational or social activities, unless such recreational or social activities are a regular incident of employment and produce a benefit to the employer beyond improvement in employee health and morale, are the natural and proximate cause of the injury or death.

[Emphasis added.]

To be compensable under N.J.S.A. 34:15-7, a petitioner ordinarily has the burden of proving that a "recreational or social" activity (1) was a regular incident of employment, and (2) produced a benefit to the employer "beyond improvement in employee health and morale." However, in Lozano v. Frank DeLuca Const., 178 N.J. 513 (2004), the Court determined "that when an employer compels an employee to participate in an activity that ordinarily would be considered recreational or social in nature, the employer thereby renders that activity a work-related task as a matter of law." Id. at 531. "Therefore, 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." Id. at 533.

The Court also considered the various forms of compulsion, ranging from a direct order to something more indirect or implicit. Where an employee alleges an indirect or implicit order, the Judge of Compensation must determine whether the employee's belief that he or she was required to participate was objectively reasonable:

When an employee alleges indirect or implicit compulsion, we hold that the employee must demonstrate an objectively reasonable basis in fact for believing that the employer had compelled participation in the activity. Whether the employee's belief is objectively reasonable will depend largely on the employer's conduct and must be assessed on a case-by-case basis. Relevant factors include, but are not limited to, whether the employer directly solicits the employee's participation in the activity; whether the activity occurs on the employer's premises, during work hours, and in the presence of supervisors, executives, clients, or the like; and whether the employee's refusal to attend or participate exposes the employee to the risk of reduced wages or loss of employment. The absence of one factor is not fatal. As noted, that list is not exhaustive and other fact patterns may suggest compulsion. However, an employee's mere subjective impression of compulsion standing alone will not bring an activity within the scope of employment.

[Id. at 534-35.]

In the present matter, the essential facts are not in dispute. Only two witnesses testified: petitioner, who was employed by Marpal as a sales administrator, testified on September 5, 2008, and Laura Navatta, Marpal's operations and safety supervisor, testified on December 19, 2008.

Petitioner and Navatta both testified that they were required to attend a banquet sponsored by their employer in Atlantic City on November 16, 2006, during a League of Municipalities Convention. The purpose of the banquet, which took place from approximately 6:00 p.m. to 9:00 p.m., was to attract potential customers, and Marpal's employees were expected "to speak to prospective customers, as well as current clients of the company."

After the banquet was over, petitioner "followed the group" to the Blue Martini Lounge and then to the Toga Bar. While she was at the Toga Bar, petitioner was speaking to a potential customer, and she introduced him to Marpal's sale manager, Ed Kohlbrenner. At that point, petitioner testified she wanted to return to her room because she was "ready to go to bed," but Kohlbrenner, who was her immediate supervisor, told her: "If I have to be here so do you."

As Kohlbrenner and petitioner continued "talking business" with the potential customer, Kohlbrenner "was getting a little hot under the collar." In addition, Kohlbrenner had mentioned that he wanted to discuss something with petitioner, and she decided it "might be a good time to go for a little walk." Petitioner testified as follows:

Q. Do you know what it is that Ed wanted to talk to you about?

A. The changes that are going to occur because he was going to be stepping down. He briefly did, you know, but he wanted to go into a little more detail.

Q. Did the higher-ups at Marpal know at that time that Ed was stepping down?

A. Yes.

Q. So you went outside and then what happened?

A. I don't think we were out there five minutes and the next thing you know somebody came outside. It was very vulgar language. . . . I don't remember what he said. All I remember saying was, "Oh, my God". So he just very politely said, "Hey, buddy, would you mind coming down on the language a little. I am trying to have a talk with," he called me his secretary. And the next thing you know this guy was in our face. . . . I was pulling him out so he wouldn't go after the guy and the guy hit me. I was trying to prevent it.

When Navatta testified, she confirmed that "there were literally hundreds of people in attendance" at Marpal's banquet, and the banquet was "a way to drum up business." She also observed petitioner and Kohlbrenner leave the Toga Bar prior to the assault. According to Navatta, the events that took place after the banquet were "strictly social." But Navatta did not dispute that petitioner and Kohlbrenner were talking to a potential customer; Kohlbrenner told petitioner she had to remain at the Toga Bar; and Kohlbrenner and petitioner left the bar to discuss changes that were going to occur at Marpal because Kohlbrenner was "stepping down."

After hearing the testimony, the compensation court decided that petitioner's claim was not compensable because her activities on November 16, 2006, were "merely social." In an oral decision on January 9, 2009, the court stated:

Petitioner went to Atlantic City for a meeting sponsored by the respondent, which was basically a public relations or sales type meeting. This business reception ran from approximately 6:00 to 9:00 p.m. on the date petitioner was injured. After 9:00 p.m. petitioner went to another bar and had several drinks, and then went to still another bar, and had more drinks. She conducted no business after 9:00 p.m. and most of the people who were at the meeting between 6:00 and 9:00 were not with her. There was no direction or suggestion from the respondent that she go to these other bars, or do anything there, since the business meeting was over. And, in fact, in the past when she was there she did not spend the night, she just went home after the meeting.

This time, she decided to spend the night so she wouldn't have to drive home after the meeting. Sometime between 1 and 2 o'clock in the morning, when they were at the third bar, she and Mr. Kohlbrenner, who was also an employee of respondent, decided to go outside for a walk. While they were taking the walk, they were both assaulted by a total stranger. . . . There was no business discussion between them, and no business reason to go outside, other than to go for a walk and perhaps have a smoke.

As I indicated previously, the crowd of people changed substantially after the respondent's banquet ended at 9 o'clock. The employees of respondent went to all different places. Some went to gamble, some went to have drinks, some went back to their room to go to sleep, some went home. There were no requirements as to where they should go after 9 o'clock and their banquet ended. The nature of the meeting and the time that it ended was proven by the testimony of respondent's witness Laura Navatto . . . and the petitioner herself, who did not contest any of this testimony.

There was also no proof presented to me that there was any business reason that would be within the scope of her employment that was discussed at the second bar she went to, or the third bar that she went to, or when she went out for the walk with Mr. Kohlbrenner when they were assaulted, and which she alleged was the compensable injury cause.

. . . .

Petitioner has the burden of proving that her injury was within the scope of her employment, and . . . it is clear to me that the bar hopping and the excessive drinking was merely social, based upon the fact that there were no suggestions or directions from the respondent that she do any of these things, or that she go for the walk or have any conversations with Mr. Kohlbrenner and that it clearly appeared to be all a social event.

It is well established that appellate courts will not disturb a compensation judge's finding that could reasonably have been reached on sufficient credible evidence present in the record, and that due regard should be given to a compensation judge's "expertise where such expertise is a pertinent factor." Close v. Kordulak Brothers, 44 N.J. 589, 599 (1995). We also recognize, however, that no special deference is owed to a compensation judge's "interpretation of the law or legal consequences flowing from established facts." Auletta v. Bergen Ctr. for Child Dev., 338 N.J. Super. 464, 470 (App. Div.), certif. denied, 169 N.J. 611 (2001). We are also obliged to consider that the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, is remedial social legislation and should be given a liberal construction in order "to implement the legislative policy of affording coverage to as many workers as possible." Brower v. ICT Group, 164 N.J. 367, 373 (2000); Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974).

In this case, the compensation court did not make any credibility findings. In addition, the court ignored petitioner's testimony that she remained at the Toga Bar to discuss business with a potential customer and work-related issues with her supervisor. Moreover, it is undisputed that petitioner remained at the Toga Bar even though it was late and she "wanted to leave" because Marpal's sales manager, Ed Kohlbrenner, told her: "If I have to be here so do you." Based on these uncontested facts, we conclude that petitioner's social activities, which resulted in her injuries, were required by her employer and were within the scope of her employment.

Reversed and remanded.

 

(continued)

(continued)

9

A-2525-08T1

June 24, 2009