JAMES M. GARTLAND v. THE HOMESTEAD INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5765-05T55765-05T5

JAMES M. GARTLAND,

Petitioner-Respondent,

v.

THE HOMESTEAD INSURANCE COMPANY,

Respondent-Appellant.

________________________________________________________________

 

Argued April 18, 2007 - Decided May 22, 2007

Before Judges Parker, C.S. Fisher and Messano.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, C.P. No. 2003-10112.

Jorge Vergne argued the cause for appellant (Law offices of Joseph Carolan, attorneys; Mr. Vergne, on the brief).

Robert E. Brenner argued the cause for respondent (Brenner & Levine, attorneys; Mr. Brenner, on the brief).

PER CURIAM

In this workers' compensation case, respondent Homestead Insurance Company (Homestead) appeals from an order entered on June 14, 2006 denying its motion to dismiss the claim for lack of jurisdiction and granting petitioner James Gartland's motion for medical and temporary disability benefits. We affirm.

The parties stipulated to the relevant facts. Petitioner was employed by Homestead on April 25, 1993, when he traveled to Texas on company business. He was scheduled to meet with the Texas Attorney General on April 27, 1993. On that morning, however, petitioner fell in the hotel shower, injuring his left knee. As a result of his injury, he had a number of surgeries over a period of ten years. Homestead's workers' compensation carrier, National Fire Insurance Company (National), provided coverage from the date it was notified of the injury in 1993 until 2003 when it determined that the injury was not compensable and terminated benefits. Thereafter, petitioner filed a claim for medical and temporary benefits.

In rendering his decision, the judge of compensation stated:

When I address the question . . . as to whether or not the activity being engaged in by the Petitioner at the time of the injury was necessary and appropriate to the completion of the business objectives of the employer, I must resolve same in the affirmative, that is, yes it was. While there is no case clearly on all fours with the facts in this matter, the Ehrgott v. Jones case, 208 N.J. Super. 393 (App. Div. 1986)[,] gives me significant guidance and direction, as Counsel mentioned[,] in that case the Petitioner was injured while en route to the airport, and the Appellate Division determined that that injury was deemed to be arising out of and in the course of employment.

Counsel for Petitioner further cited a number of cases which held that a particular type of activity was not deemed to be arising out of and in the course of employment, and they have been cited in his brief. I'll cite them now:

Mangigian v. Franz Warner [Assoc.], Inc., 205 N.J. Super. 422 (App. Div. 1985) wherein the Court held that the Petitioner was not engaged in the direct performance of her duties when she went out for a late night snack.

Also . . . cited and helpful in . . . arriving at my decision is the case of Walsh v. Ultimate Corp., 231 N.J. Super. [383] (App. Div.), [certif.] [d]enied, 117 N.J. 92 (1989)[,] wherein an employee was required to be in Australia at the employer's direction and was injured while taking a day trip for sightseeing. That injury . . . was ultimately determined not to be arising out of and in the course of employment.

And, again, the narrow issue in this case comes down to whether or not Petitioner taking a shower in Texas shortly before attending a meeting with the Attorney General of Texas to accomplish the business objectives of the employer is compensable, that is, is it arising out of and in the course of employment? It's my determin[ation] that it clearly is.

. . . .

Now Respondent's Answer to the claim petition denies that the [1993] injury arose out of and was in the course of employment. It is now June 2006. [The] [a]lleged injury was, as pointed out, some 13 years ago. If that was an issue and this matter were being tried now, to suggest that the Petitioner is not grossly disadvantaged by now[,] 13 years later, having to go back and reconstruct [the] events, and obtain witnesses or, whatever is necessary to sustain his burden here, to say that that has not been denied would be [an] inappropriate [ ] conclusion on my part. Thirteen years later is the hotel still there? Were there any witnesses that carried him from the hotel somewhere? Was anyone called? Was there a police report? All of these things after 13 years would be, in all likelihood, impossible to reconstruct. So estoppel does apply and should apply regardless of the fact that, under these particular circumstances, he has not been harmed.

In this appeal, Homestead argues that (1) petitioner's injury did not arise out of or in the course of his employment; and (2) the trial court's application of equitable estoppel is inconsistent with the 1979 amendments to the Workers' Compensation Act.

Homestead maintains that petitioner's injury is not compensable because it did not occur during the course of his employment as defined in N.J.S.A. 34:15-36. In our view, petitioner was on a "special mission" for his employer which "required [him] to be away from the conventional place of employment" and he was "actually engaged in the direct performance of his employment duties" while showering in preparation for the meeting with the Texas Attorney General. See Id. at 336. We reach this conclusion after consideration of the stipulated facts and the "special mission" exception to the definition of employment in N.J.S.A. 34:15-36.

In Ehrgott, supra, 208 N.J. Super. at 395, the petitioner was injured on his way to the airport for a flight to a professional meeting. "The employer paid all business-related expenses incurred in attending the meetings, including airfare, ground transportation, hotel bills and meals." Id. at 396. We found that the accident on the way to the airport occurred in the course of the petitioner's employment, and stated:

We think it obvious that paid travel to and from an out-of-state professional meeting is so integral to attending the meeting itself as to constitute a part of the overall special mission.

[Id. at 398 (citing Nemchick v. Thatcher Glass Mfg. Co., 203 N.J. Super. 137, 142-43 (App. Div. 1985)).]

In Walsh, an employee was killed in an automobile accident while on a sightseeing tour during a business trip to Australia. 231 N.J. Super. at 385-86. The petitioner argued that the deceased employee was on the sightseeing tour because the employer encouraged him "to get acquainted with the country, the customs and the people of Australia," in anticipation of moving to Australia for a year-long assignment. Id. at 386. The decedent's current assignment was "to straighten out the 'mess' in the Perth office." Ibid. Because the decedent was assigned to the Perth office for a lengthy period of time in contemplation of moving to Australia, we determined "that even though the initial assignment may be viewed as temporary, the decedent had established a new 'place of employment,' within the contemplation of N.J.S.A. 34:15-36, when he arrived in Perth and assumed control of the office." Id. at 390. Consequently, we concluded "that the decedent was not on duty at the time of his accident either by reason of his being encouraged to sight-see or by reason of the fact that he had work with him which he expected to work on when he arrived at his destination." Ibid.

In Mangigian, the petitioner was on a business trip, paid for by the employer when, well after conclusion of the work day, she went to a nearby McDonalds to purchase a snack. 205 N.J. Super. at 424. She was struck by an automobile on her return to the hotel and filed a claim for workers' compensation benefits. Ibid. There, we found that the petitioner was not engaged in the performance of her employment at the time of the accident and, therefore, was not eligible for workers' compensation. Ibid.

Here, petitioner's situation is more akin to Ehrgott, in that he was showering in preparation for a business meeting. Petitioner was paid his regular salary during his time in Texas and all of his expenses, "including hotel, airfare, meals, rental cars and incidentals." In our view, petitioner's injury while showering in preparation for the meeting with the Texas Attorney General falls within the "special mission" exception to N.J.S.A. 34:15-36, because he was not engaged in an after hours activity, nor was he involved in entertainment of any sort. He was not "off duty" in the sense that he was engaged in a free time activity of his choosing. With respect to the judge of compensation applying equitable estoppel, defendant argues that the estoppel remedy "is contrary to the legislature's intent in amending the Workers['] Compensation Act in 1979." Defendant relies on Bey v. Truss Systems, Inc., 360 N.J. Super. 324, 327 (App. Div. 2003), in which we stated: "The Workers' Compensation Court is an administrative court, not a constitutional court. Its jurisdiction is limited to that granted by the Legislature and therefore 'cannot be inflated by consent, waiver, estoppel or judicial inclination.'" Id. at 327 (quoting Riccioni v. Am. Cyanamid Co., 26 N.J. Super. 1, 5 (App. Div.), certif. denied, 13 N.J. 289 (1953)). In Bey, the petitioner failed to file his claim within the two-year period of limitation. Ibid. N.J.S.A. 34:15-27. We noted that the two-year time limit is a jurisdictional requirement that cannot be expanded by the workers' compensation court. Id. at 327.

This case differs substantially from Bey and is consistent with the facts and legal conclusions reached in Witty v. Fortunoff, 286 N.J. Super. 280 (App. Div. 1996). In Witty, the petitioner was injured when he was struck by a falling ceiling tile while working. Id. at 282. The injury occurred on July 10, 1990 and he "received medical treatment at the expense of his employer's workers' compensation carrier" through December 7, 1990. Ibid. On December 17, 1990, the petitioner was advised to see the compensation carrier's designated physician for further treatment. He was expressly told that "[a]fter December 26, 1990, Dr. Eisenberg will be your only authorized treating physician . . . . [and] if you decide to go to another physician, on your own, the bill will be your responsibility." Ibid. The petitioner saw Dr. Eisenberg on December 26, 1990. On January 17, 1991, petitioner "was advised that he needed no further treatment and his employer's workers' compensation carrier would not pay for any further treatment." Ibid. The employee then filed a claim petition. The employer moved to dismiss for lack of jurisdiction on the ground that the petition was not timely filed. Id. at 282-83. The motion was granted and the petitioner appealed. Id. at 283. We held:

In cases of this type, the determining factor is whether the total pattern of conduct would be likely to lull an injured employee into a false sense of security which may cause him to fail to file a timely petition. . . .

The employer by its own action created an impression that it would continue to provide medical treatment, except that the treatment would be through a different provider.

[Id. at 284.]

We concluded that the employer's action in leading the petitioner to believe treatment would be provided through the carrier's designated physician prevented the employer from asserting the two-year limitation period as a defense. Ibid.

In this case, the employer's conduct is even more egregious than in Witty. Here, the employer provided full medical benefits through its compensation carrier for ten years, including approval of surgeries, MRIs and medications. When petitioner filed a third-party suit against the hotel and Kohler Company, the compensation carrier was kept fully informed, and, in fact, asserted a lien against any recovery petitioner may have obtained. When petitioner requested that the carrier compromise its lien at a lesser amount than the statutory limit to settle the third-party suit, the carrier refused. The third-party action was subsequently dismissed after a jury found no cause for action.

Respondent argues that N.J.S.A. 34:15-15, which states: "[t]he mere furnishing of medical treatment or the payment thereof by the employer shall not be construed to be an admission of liability," precludes it from providing further coverage. In our view, respondent's ten-year coverage is not an admission of liability. Rather, it constituted a "total pattern of conduct [that] would be likely to lull an injured employee into a false sense of security . . . ." Witty, supra, 286 N.J. Super. at 284. "[W]hen an employer undertakes to advise an injured employee to apply for certain disability or medical benefits that are authorized by the employer, the employer necessarily assumes a further obligation not to divert the employee from the remedies available under the Act." Sheffield v. Schering Plough Corp., 146 N.J. 442, 460 (1996). Here, as in Witty, the employer's own actions prevent it from disclaiming coverage after providing full medical benefits for ten years. Witty, supra, 286 N.J. Super. at 294; see also Sheffield, supra, 146 N.J. at 460.

We affirm the compensation court's holding that petitioner's injury occurred within the special mission exception to the definition of employment and that respondent is prevented from denying coverage after providing full medical benefits for ten years.

Affirmed.

 

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A-5765-05T5

May 22, 2007