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DOCKET NO. A-0915-06T50915-06T5









Argued August 7, 2007 - Decided

Before Judges S.L. Reisner and Lyons.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, No. 2006-8212.

Richard J. Riordan argued the cause for appellant (Green, Jasieniecki & Riordan, attorneys; Mr. Riordan, of counsel and on the brief).

Bernard J. Recenello argued the cause for respondent (Law Office of Bernard J. Recenello, attorney; Mr. Recenello and Colleen E. Brady, on the brief).


Appellant, Township of Randolph Police Department (Randolph P.D.), appeals from a judgment entered on October 3, 2006, finding that the accident which injured respondent, Andrea DeCoursey (DeCoursey), arose out of and in the course of her employment with appellant. We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. DeCoursey at all relevant times was a police officer employed by Randolph P.D. On February 14, 2006, DeCoursey was on duty from 7:00 p.m. to 7:00 a.m. During her shift, DeCoursey, in accordance with departmental procedures, asked her supervisor, Sergeant Gary Moore, for authorization to have her dinner at her home. DeCoursey lived in the neighboring municipality within close proximity to the department and was granted authorization to take her meal at her home. The permission to do so was conditioned on her remaining in radio and telephone contact with her supervisor so that she could answer any duty calls that may come in while she was having her meal. During her meal break, she kept her radio within hearing distance so that she could be contacted in case of an emergency.

When DeCoursey finished her meal, she started to return to her patrol vehicle. As she was exiting her home to go to her patrol vehicle, she slipped and fell on black ice, incurring an injury.

DeCoursey filed her claim petition for workers' compensation benefits against the Township of Randolph on March 20, 2006. A hearing was held over the course of three days before a Judge of Workers' Compensation.

Both the Randolph P.D. and DeCoursey agree that she was working a twelve-hour shift on February 14, 2006, and that she was paid on an hourly basis for the entire twelve-hour period. DeCoursey, her supervisor, and a union representative all testified that it was common practice for officers to get authorization to take a lunch break and that the location of the lunch break must also be authorized. All three individuals testified that DeCoursey, at the time of the accident, was "on duty."

The township manager also testified that DeCoursey was on duty on February 14, 2006, and was paid for her twelve-hour shift on an hourly basis. Officer Donovan, the union representative, testified that during meal break periods, officers are not permitted to engage in any personal activities and are still within the supervision and control of their supervisors.

In addition to the testimony outlined above, the Fraternal Order of Police contract with Randolph was marked into evidence. The contract states in pertinent part, in Article X, paragraph A, that, "for the purpose of this Article, injury or illness incurred while the employee is acting in any employer authorized activity, shall be considered in the line of duty." The Workers' Compensation Judge, in his written decision, found that the facts were not in dispute. The judge found, based on the testimony, that DeCoursey was granted permission to eat dinner at home, which was seven to eight minutes, or five or six miles from the precinct, and two minutes from the Randolph border. The judge also found that all Randolph police officers are paid and under direct supervision and control for their entire twelve-hour shift, including the time that they eat lunch or dinner. The judge noted that DeCoursey, while she was eating dinner, was on duty, was required to keep her radio on so that she would be in direct communication with her supervising officers and was required to respond to any demand made of her during that time frame. Finally, the judge determined that while she was authorized to eat dinner at home, she was not authorized or permitted to perform any personal errands. The judge rejected Randolph P.D.'s argument that all accidents that occur during lunch that are away from the normal work site, do not arise out of, and in the course of, a worker's employment.

The judge, relying on Ward v. Davidowitz, 191 N.J. Super. 518 (App. Div. 1983), found that there were "special circumstances or arrangements" between the employer and employee, which would bring the accident that occurred during the employee's dinner away from the employer's premises within the definition of "employment" contained in the Workers' Compensation Act. The judge noted four special circumstances or arrangements which supported his conclusion. First, he pointed out that all police officers are paid for and are on duty and under the direct supervision of, the department during their entire twelve-hour shift. Secondly, the judge concluded that the arrangement in this case benefits the police department because it does not have to have another officer cover for an officer who is eating lunch or dinner. Thirdly, the judge noted that the Fraternal Order of Police contract between the Township of Randolph and the union provides that an employee who is injured while acting in any employer-authorized activity is considered acting in the line of duty. Lastly, the judge relied upon the Randolph Police Department Operations' Personnel Conduct Policy book, which authorizes police officers to have an occasional meal with a supervisor's permission within a reasonable distance of the Randolph township line, provided that they remain in radio or phone contact with the police communications' desk.

The Workers' Compensation Judge was careful to point out that he did not have jurisdiction to interpret the Fraternal Order of Police contract because of the holding in Perry v. Department of Law and Public Safety, Division of State Police, 153 N.J. 249 (1998), and that he did not base his decision solely on his interpretation of that agreement but rather the evidence produced at trial.

Based on these special circumstances and arrangements, the Workers' Compensation Judge found that the accident arose out of, and in the course of, DeCoursey's employment with the Township of Randolph Police Department and set the matter down for a trial to determine the nature and extent of her injuries. On October 3, 2006, the Workers' Compensation Judge entered his decision finding the injury compensable. This appeal ensued. Randolph P.D. filed a motion for stay pending appeal, which was granted by the judge provided that a bond be posted based upon temporary disability and prospective medical treatment costs and expenses.

On appeal, Randolph P.D. argues that, "the judge of compensation misapplied N.J.S.A. 34:15-36's definition of employment to a set of facts in which both parties agreed petitioner was on a meal break at the time of the accident." We begin our consideration of this argument by restating the applicable legal principles.

Our Supreme Court has noted, "[t]he Workers' Compensation Act (hereinafter Act) requires employers to compensate employees for accidental injuries 'arising out of and in the course of employment.'" Jumpp v. City of Ventnor, 177 N.J. 470, 476 (2003) (quoting N.J.S.A. 34:15-7). The Act describes employment as:

[C]ommenc[ing] when an employee arrives at the employer's place of employment to report for work and . . . terminat[ing] when the employee leaves the employer's place of employment, excluding areas not under the control of the employer; provided, however, when the employee is required by the employer to be away from the employer's place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment . . . of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.

[N.J.S.A. 34:15-36.]

In Jumpp, the Court 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." 177 N.J. at 482. The Act was amended in 1979 and case law subsequent to the 1979 amendments has recognized the legislative intent of the amendments was "to focus on the performance of the work, thereby limiting the reach of the workers' compensation statute." Ibid. While the Court recognized that the 1979 amendments were legislative mandates to curtail the compensability of off-premise accidents, it recognized that off-premises employees are not to be treated differently from on-premises employees. Id. at 483. The Court reiterated that the Act provides that off-premises employees "are to be compensated only for accidents occurring in the direct performance of their duties." Ibid. The Court held, "[e]mployees who are where they are supposed to be, doing what they are supposed to be doing, are within the course of employment whether on- or off-premises, except when they are commuting." Ibid.

This holding is consistent with Ward where our court noted that the clear language of the definition of employment in the statute is key to:

the elimination of an employer's responsibility for accidents occurring in areas not under the employer's control unless the employee is required by the employer to be away from the employer's place of employment. In that event the determining element of compensability rests upon the direct performance of duties assigned or directed by the employer rather than on the place of employment.

[191 N.J. Super. at 523-24.]

We specifically noted in Ward that "[t]here may be special circumstances or arrangements, between employer and employee, which would bring an accident occurring during a trip for lunch away from the employer's premises within the definition of employment contained in N.J.S.A. 34:15-36." Id. at 524.

In Sager v. O.A. Peterson Construction Co., the Court stated:

The standard of appellate review in a workers' compensation case is limited 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 of their credibility and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor.

[Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation and internal quotation marks omitted).]

An appellate court may not "engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). Findings of fact made by a trial judge "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Accordingly, if in reviewing an agency decision, an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings, even if the court believes that it would have reached a different result. In re Taylor, 158 N.J. 644, 657 (1999) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28-29 (1981)).

[ 182 N.J. 156, 163-64 (2004).]

In this case, the facts found by the Workers' Compensation Judge are clearly supported by sufficient credible evidence in the record. DeCoursey was working her 7:00 p.m. to 7:00 a.m. twelve-hour shift and during the entire period was on duty. She received authorization from her employer to have her meal at home in accordance with the police department's policy manual. Although there were no calls during her dinner period, she maintained, as required, communication with her supervisor and was available for calls.

Randolph P.D. raises as error, the Workers' Compensation Judge's recognition of the language in the Fraternal Order of Police contract. This issue was not raised below, but the Workers' Compensation Judge carefully indicated that he recognized the holding in Perry and did not rely solely on the contract to support his decision. We note first of all, that in Perry, the issue was substantially different. In that case, the issue was whether the workers' compensation court was interpreting a circular "to authorize the payment of benefits not statutorily prescribed by the Act . . . ." Perry, supra, 153 N.J. at 252. That was not the case here. The Workers' Compensation Judge examined the contract to determine if it assisted him in determining what the employer and the employee's union had agreed to concerning what injuries shall be considered as occurring in the line of duty. The agreement was relevant to the court in determining what was agreed upon between the parties in defining this employee's "course of employment." The judge's review of the agreement was no different than a judge passing on and evaluating any testimony or documents that reveal what an employer had promulgated or agreed to as the work duties and responsibilities of its employees.

We are satisfied from a review of the record that the Workers' Compensation Judge clearly evaluated the testimony and determined that DeCoursey, throughout the twelve-hour period, was on duty and was always available for duty, including during her meal times.

Randolph P.D.'s argument that, because her home was outside of the Randolph Township limits that her statutory authority was diminished pursuant to N.J.S.A. 40A:14-152, may be correct if she were to try to effectuate an arrest in the neighboring municipality, but that misses the point. The point is that, pursuant to the township's policy, police officers may venture out to a neighboring municipality for an occasional meal with authorization so long as he or she can respond quickly to situations in Randolph, the municipality which they are employed. Using Randolph P.D.'s logic, if an officer were transporting a prisoner to the county jail which is in another municipality and stopped for lunch outside of Randolph on the way back with permission and was injured outside the confines of Randolph, the officer would not be on duty because the officer is "off-premises." That logic ignores the holding in Jumpp where the Court said employees are entitled to compensation where they, "are where they are supposed to be, doing what they are supposed to be doing . . . ." 177 N.J. at 483.

The accident occurred while DeCoursey was in the course of her employment. This is because, throughout the twelve-hour period, police officers in Randolph are on duty; DeCoursey was authorized by her supervisor in accordance with policy to take her meal at home so long as she remained in communication with her supervisor and be ready to respond to a call; she was going back to her patrol car from dinner when the incident occurred; and it occurred during the direct performance of her assigned duties, as directed and authorized by her employer.

There is no difference between the facts presented in this case and the situation where an officer, with permission, brought her police vehicle to headquarters, parked it, went inside headquarters to have her meal, completed her meal and fell while exiting headquarters as she was about to enter her patrol car. Any difference would be merely one of geography. Both officers would be on duty, both would need authorization to take their meal break, and both would be required to maintain communication and respond to any calls. Both would be acting in the course of their employment and would meet the definition of employment in N.J.S.A. 34:15-36. In addition, the officer utilized an employer-authorized vehicle on business permitted by the employer and was "engaged in the direct performance of [her] duties [as] assigned or directed by the employer" at the time of the injury. N.J.S.A. 34:15-36.

Accordingly, we find the decision of the Workers' Compensation Judge to be consistent with the standards set forth in the statute as interpreted by Jumpp, Sager and Ward and affirm.





August 14, 2007