WALESCA BENVENUTTI v. SCHOLASTIC BUS COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3732-11T1

WALESCA BENVENUTTI,

Petitioner-Respondent,

v.

SCHOLASTIC BUS COMPANY,

Respondent-Appellant.

______________________________________

April 4, 2013

Submitted March 20, 2013 Decided

Before Judges Axelrad and Happas.

On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Docket No. 2010-25537.

Law Offices of Monique T. Moran, attorneys for appellant (Dana Caroline Davis, on the brief).

The Weiss Group, LLC, attorneys for respondent (Joann L. Downey, on the brief).

PER CURIAM

This workers' compensation appeal concerns whether an ankle injury of petitioner, Walesca Benvenutti, occurred during the scope of her employment with respondent, Scholastic Bus Company. The compensation judge determined that petitioner's injury was compensable under the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -142 (the Act). Respondent argues that the injury did not arise out of and in the course of her employment because petitioner was injured when she exited respondent's school bus at her home and she was not working for respondent at the time of the incident. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Compensation Judge Bradley W. Henson, Sr., presided over this bifurcated trial. The only issue in dispute was whether petitioner's injury arose out of and in the course of her employment with respondent. The testimony of petitioner and three of respondent's employees revealed the following facts. Petitioner worked as a school bus driver for respondent. Her responsibilities included driving children to school in the morning and driving them home in the afternoon. After each run, petitioner cleaned the bus interior and inspected the seatbelts. Petitioner testified that "[t]here was no specific time to when [she] had to clean the bus." She would "clean the bus [any] time [during] the day as long as the bus was in [her] possession." Respondent did not specify an exact time or place where the bus should be cleaned. Respondent acknowledged that petitioner was permitted to clean her bus off-premises. In fact, petitioner was paid additional money to clean the bus interior.

Respondent also allowed petitioner to take her bus home after her morning run and then leave from her home to complete her afternoon run. Respondent's dispatcher, Gregorio Mejia, testified that "the buses have to be swept after each run" and that "[the drivers] get paid extra to sweep [them]." Respondent's supervisor, George Tucker, admitted that petitioner was permitted to sweep the bus at home.

Petitioner testified that on June 9, 2010 she parked the bus in front of her house after her morning run. Prior to exiting the bus, she swept the bus and inspected the seat belts. Petitioner tripped over a piece of rubber mat and fell as she was exiting the bus, sustaining injury.

At trial, respondent relied on a handwritten statement of petitioner, prepared three days after the incident, in which petitioner failed to mention that she was cleaning the bus before her fall. Petitioner indicated she left out "[t]he details that [s]he was cleaning the bus before [s]he fell[,]" because she "wasn't thinking at the moment and [s]he thought that they needed to know that [s]he fell and broke [h]er ankle, but didn't write . . . what [s]he was doing before it happened."

Based on these facts, the compensation judge found that petitioner sustained a compensable work-related injury while in the scope of her employment with respondent. On appeal, respondent asserts the injury did not arise out of and in the course of her employment because petitioner was injured when she exited respondent's school bus at her home and she was not working for respondent at the time of the incident.

Our standard of review is well-settled. We are bound by the compensation judge's fact-findings that are supported by substantial credible evidence in the record. Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We must give due regard to the compensation judge's expertise when that is a factor. Ibid. "[D]eference must be accorded the factual findings and legal determinations made by the compensation judge unless they are manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 262 (2003) (internal quotation marks and citations omitted). Petitioner bears the burden to establish the compensability of the claim being made. Lindquist, supra, 175 N.J. at 279; Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

"An employee is entitled to compensation for an accidental injury under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -142, if the injury 'a[rose] out of and in the course of employment.'" Cooper v. Barnickel Enters., Inc., 411 N.J. Super. 343, 346 (App. Div. 2010) (alteration in original) (quoting N.J.S.A. 34:15-7); see also Jumpp v. City of Ventnor, 177 N.J. 470, 476 (2003); Acikgoz v. N.J. Tpk. Auth., 398 N.J. Super. 79, 87 (App. Div.), certif. denied, 195 N.J. 418 (2008). The definition of "employment" under the statute is multi-faceted, and includes situations in which the employee is physically away from the employer's premises but nevertheless is "engaged in the direct performance of duties assigned or directed by the employer[.]" N.J.S.A. 34:15-36; see also Cooper, supra, 411 N.J. Super. at 346.

Courts must bear in mind that "[t]he language of the [Act] must be liberally construed in favor of employees." Cannuscio v. Claridge Hotel, 319 N.J. Super. 342, 349 (App. Div. 1999) (citations omitted). We note that "the [Act] 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.'" Auletta v. Bergen Ctr. for Child Dev., 338 N.J. Super. 464, 470 (App. Div.) (quoting Brower v. ICT Grp., 164 N.J. 367, 373 (2000)), certif. denied, 169 N.J. 611 (2001).

Finally, an employee's injury may be compensable notwithstanding the fact that incident occurred off an employer's premises. See Jumpp, supra, 177 N.J. at 482. The Supreme Court in Jumpp noted 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." Ibid. (quotation marks omitted). "Nothing in N.J.S.A. 34:15-36 suggests that the Legislature intended to create a higher bar for determining scope of employment for off-premises employees than for those whose regular work location is at the employer's place of business." Id. at 483.

Here, the judge found as a fact that bus sweeping was an integral part of petitioner's job; she was required "to clean the bus between runs during the day" and "was compensated for cleaning the bus." The judge credited the testimony of petitioner that during the work day, while exiting the bus after sweeping it, she tripped over a piece of rubber mat. Moreover, respondent had knowledge of, and expressly allowed petitioner to take the bus home and clean it off-premises. As a consequence, the evidence supports the findings of Judge Henson, whose expertise and review of the witnesses' testimony led him to conclude that petitioner was acting in the scope and course of her employment at the time of her injury. Sager, supra, 182 N.J. at 163-64.

Affirmed.