MARK DEFOYD - v. DELTA CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2134-10T1

MARK DEFOYD,

Petitioner-Appellant,

v.

DELTA CORPORATION,

Respondent-Respondent.

________________________________________________________________

December 15, 2011

Submitted October 18, 2011 - Decided

Before Judges Baxter and Nugent.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, C.P. No. 2007-26884

Shebell & Shebell, L.L.C., attorneys for appellant (Danielle S. Chandonnet on the brief).

William E. Staehle, attorney for respondent (Carol A. Dietrich on the brief).

PER CURIAM

Petitioner Mark DeFoyd appeals from the November 17, 2010 Division of Workers' Compensation order for judgment that dismissed his claim following a trial. DeFoyd contends that the injuries he sustained when he was carjacked arose out of and in the course of his employment with respondent Delta Corporation because he was carjacked while on his way to meet a prospective client. Delta disputes that DeFoyd was scheduled to meet a client when he was carjacked and maintains that the carjacking had no connection to DeFoyd s employment. After considering the parties evidence, the Judge of Compensation (JOC) determined that the carjacking did not arise out of and in the course of DeFoyd s employment with Delta. Because the JOC's decision was based on credibility determinations and supported by sufficient credible evidence in the record, we affirm.

The following evidence was adduced at the workers compensation trial. Delta, an information technology (IT) consulting firm that contracted with large pharmaceutical companies, hired DeFoyd on August 13, 2007, as an outside account executive whose job involved "go[ing] out and develop[ing] business for the company." Delta expected DeFoyd "to go out and do networking." According to DeFoyd, on August 24, 2007, he was on his way to meet a prospective client when he was carjacked and injured.

DeFoyd testified that during the week before the carjacking he met a prospective client named Ken, a pharmaceutical representative for Bayer, at a Starbucks store. DeFoyd and Ken agreed to meet again at 7:00 p.m. on August 24, 2007, at the Brazilia restaurant in Newark. On his way to the meeting, DeFoyd stopped at a Chinese restaurant to buy a bottle of water. When he returned to his car a man opened the passenger door and beat DeFoyd in the head with an unidentified object until he lost consciousness. When DeFoyd "came to," he exited the car and the carjacker drove off. DeFoyd s company computer and files were in the car.

DeFoyd could not recall Ken's last name or where he worked, so there was no way to locate him. When meeting a prospective client or contact, DeFoyd would log the contact's name and phone numbers into a program on his laptop computer, but because his laptop had been stolen during the carjacking, he could not retrieve Ken s information.

According to DeFoyd, he returned to work on the next business day and told his supervisor, Bob Erianne, about the carjacking. DeFoyd also reported the incident to Human Resources, but could not recall at trial the name of the person with whom he spoke. Delta eventually terminated DeFoyd because he was disabled and could not do his job.

Delta presented four witnesses to refute DeFoyd s testimony that he was driving to a meeting with a prospective client when the carjacking occurred. Delta's chief financial officer and executive director of corporate operations, Sherry Beth Silinger, testified that Bayer was already Delta's client on August 24, 2007. She also testified that when employees put an appointment into their laptop computers, the company's main server is updated with the information. The manager of Delta's IT department retrieved the information from DeFoyd's calendar application; there were no meetings scheduled for August 24, 2007, though there were appointments scheduled on other dates.

As to DeFoyd s termination, Silinger testified she was present when DeFoyd was terminated, and that he was terminated because of his non-attendance at mandatory Monday status meetings and because his skills did not conform with the company's needs. Although she had spoken to DeFoyd several times before he was terminated, DeFoyd never told her that the carjacking arose out of his employment. She did not learn that DeFoyd claimed the carjacking was work-related until after his termination.

Jason Fritzsch, employed by Delta in internal systems support, worked with the servers and work stations used to electronically store the company's data. He personally restored the back-up of DeFoyd's mail items and calendar from a mail server. Fritzsch explained that DeFoyd could have accessed his calendar and mail from a computer other than his laptop. Fritzsch also confirmed that the back-up of DeFoyd's calendar had appointments that DeFoyd had scheduled, but none for August 24, 2007.

Delta's chief operating officer and DeFoyd's direct supervisor, Robert Erianne, testified it was not customary for the sales force to have dinner meetings with business contacts without his prior approval. He confirmed Bayer had been a client of Delta's on and off for approximately eight to ten years, and that DeFoyd did not handle the Bayer account. He also confirmed that he terminated DeFoyd because DeFoyd lacked certain professional skills, was late for meetings, missed meetings entirely, and did not have good retention skills. Finally, Erianne testified that DeFoyd never told him that the carjacking was work-related.

Delta's final witness was Carl Schulz, who held the position of director of business solutions but was the principal consultant in August 2007. Schulz testified that when DeFoyd first returned after the accident, Schulz asked what happened. DeFoyd responded that he was driving to Newark to meet friends for dinner and stopped at a light when someone opened his car, beat him, forced him out, and stole the car.

According to the police report that the parties agreed to admit into evidence, DeFoyd told the police he was unemployed, had stopped at the Chinese restaurant to get food and was walking toward his car when he was approached by a black male and punched in the face. DeFoyd testified the police report contained several inaccuracies.

Delta terminated DeFoyd on September 17, 2007. On October 5, 2007, DeFoyd filed a claim petition seeking workers' compensation benefits for the injuries he sustained during the carjacking. Following discovery and motion practice, a trial commenced on November 12, 2009, on the issue of whether the carjacking arose out of and in the course of DeFoyd's employment.

The JOC rendered her decision on November 17, 2010. She did not find DeFoyd to be a credible witness because he was evasive, defensive, and rarely answered questions directly without giving an excuse for his answer. The JOC also cited DeFoyd's poor memory, which he attributed to the injury he sustained in the carjacking. The JOC found the testimony of Delta's witnesses to be credible. Finding that DeFoyd's testimony was contradicted by four credible witnesses presented by Delta, the JOC dismissed DeFoyd's claim.

The sole argument raised by DeFoyd in this appeal is that the carjacking arose out of and in the course of his employment. The scope of our review is well-established. "In workers' compensation cases, . . . appellate review 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 . . . their credibility." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (internal quotation marks and citation omitted). "Deference must be accorded the factual findings and legal determinations made by the [JOC] unless they are manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (internal quotation marks and citations omitted).

Under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -142, an employer is liable to an employee who sustains injuries in an "accident arising out of and in the course of employment . . . ." N.J.S.A. 34:15-7.

The "arising out of" portion of the statute refers to the causal origin of the accident, and the "'course of employment' portion refers to the time, place, and circumstances of the accident in relation to the employment." Valdez v. Tri-State Furniture, 374 N.J. Super. 223, 232 (App. Div.2005). To prove compensability under the Act, a petitioner must establish that the accident arose out of his employment by demonstrating a causal connection between the employment and the accident. Coleman v. Cycle Transformer Corp., 105 N.J. 285, 290 (1986); Stroka v. United Airlines, 364 N.J. Super. 333, 339 (App. Div. 2003), certif. denied, 179 N.J. 313 (2004). Second, he must also show a time and place nexus between the employment and the accident to prove the injury occurred in the course of employment. Stroka, supra, 364 N.J. Super. at 339.

[Acikgoz v. N.J. Tpk. Auth., 398 N.J. Super. 79, 87-88 (App. Div.), certif. denied, 195 N.J. 418 (2008).]

The JOC s factual determination that the carjacking did not arise out of and in the course of DeFoyd s employment with Delta is fully supported by the record. From Delta s evidence that it had the account with Bayer before the carjacking, and that DeFoyd was not assigned to the account, the JOC could have readily concluded that DeFoyd was not meeting a Bayer pharmaceutical representative when the carjacking occurred. The evidence that DeFoyd s computer program contained no record of his appointment with Ken, and that employees were not generally permitted to schedule dinner meetings with prospective clients without prior approval, further supported the JOC s conclusion. Finally, Delta s evidence that DeFoyd did not report the carjacking as a work-related incident, and made contradictory statements as to what he was doing when the carjacking occurred, created credibility issues that, resolved against DeFoyd, fortified the JOC s decision.

In summary, the factual findings and legal determinations made by the JOC were supported by competent and relevant evidence that the JOC found credible. Lindquist, supra, 175 N.J. at 262.

Affirmed.