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December 14, 2015


Argued April 20, 2015 Decided

Before Judges St. John and Rothstadt.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2011-21055.

Robert A. Olkowitz argued the cause for appellant (Law Offices of Robert A. Olkowitz, P.C., attorneys; Mr. Olkowitz, on the brief).

Carla P. Aldarelli argued the cause for respondent (Capehart & Scatchard, P.A. attorneys; Ms. Aldarelli, on the brief).

The opinion of the court was delivered by


Petitioner Lesley Joseph appeals from a workers' compensation court's final decision dismissing his claim for compensation for injuries he sustained after being assaulted by another employee at work. The judge of compensation found the assault lacked any nexus to petitioner's employment, as it arose out of his involvement with the other employee's pyramid investment scheme. On appeal, petitioner argues the fact that the assault occurred at the employer's premises "satisfies the arising 'out of' and 'in the course of test'" under the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -142 (the Act). We disagree and affirm.

The salient facts were ultimately not in dispute. In 2011, petitioner was working as a nursing supervisor of the overnight shift at a nursing home owned by respondent Monmouth County (employer). The employee who attacked petitioner was his nursing assistant, who had worked under his direct supervision for five years. Petitioner had never had any trouble with his assistant before or written her up for any work-place infractions. He did not know her before working at their employer's facility and never socialized with her outside of work.

Prior to the assault, petitioner became involved in his assistant's pyramid scheme that was known as a "susu." The susu included participants who worked with the assistant, as well as individuals from outside her place of employment. It entailed an "investment" in which participants put "money into a pot" and then took turns sharing the amounts collected. For example, if twenty employees contributed one hundred dollars, then over the course of twenty pay periods, each employee would take turns collecting $2000 during their assigned week. However, the participants did not receive interest on the money they contributed. Despite participating in the susu on three occasions, petitioner never collected any funds.

In approximately May 2011, the assistant had a "big wedding," which concerned everyone in the susu because they were not receiving any money from the amounts they contributed. In the following weeks, petitioner tried to talk to his assistant, but she avoided him. On June 9, 2011, he made rounds and went to the assistant's unit to discuss with her what needed to be done during her shift. He then commented to her that people in the pool who were supposed to be paid the week prior had not yet been paid. Petitioner explained that he was scheduled to be paid the following week and that he was worried he would not get paid either. The assistant told petitioner she had to use some of the money, but that he should not worry because she would make sure he got his money. Nothing else was said and, according to petitioner, his assistant did not "exhibit any behavior or any animosity or anger [to indicate] that two hours later [he] was going to be attacked."

The attack took place later that night while petitioner took a break in the break room, where he put his feet up and closed his eyes. The judge of compensation found that petitioner actually went to sleep while on break, in contravention of the employer's rules.1 While petitioner slept, his assistant entered the room and attacked him with a hammer, leaving him with cuts on his face and in the center and back of his head. He had "no idea why she was hitting [him and] didn't know that she even had a hammer when she entered the room."2 He managed to grab the hammer from her and went outside the break room to ask someone to call 911. Police and paramedics responded and took him to the hospital.

During the ensuing police investigation, the assistant denied culpability. According to her, it was petitioner who began running at her with a hammer, but she was able to get the hammer and hit him in the head. However, she later admitted responsibility and pled guilty to aggravated assault with a deadly weapon.

After considering the evidence, the judge of compensation placed his findings and reasons on the record in a comprehensive oral decision. The judge cited to the Court's opinion in Perez v. Pantasote, Inc., 95 N.J. 105 (1984), and noted it was petitioner's burden to prove his claim by a preponderance of the evidence. The judge cited to the Act's limitation that compensation shall be made only for an "accident arising out of and in the course of employment." See N.J.S.A. 34:15-7. He defined "in the course of employment" as occurring "(1) [w]ithin the period of employment, and (2) [a]t a place where the employee may reasonably be, and (3) [w]hile employee is reasonably fulfilling the duties of the employment, or doing something incidental thereto." The judge turned to the meaning of "[a]rising out of employment," finding that it "refers to the causal origin of the accident in relation to the employment[,] requir[ing] an analysis of the risk which gave rise to the injury and whether such risk is contemplated as an incident of the employment." The judge explained "[t]he 'but for' or positional risk rule" contemplated by the Act,3 stating

The test asks whether it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere. Unless it is more probable that the injury would not have occurred under the normal circumstances of everyday life outside the employment, the necessary causal connection has not been established. The 'but for' or positional risk doctrine includes as one of its components the nature of the risk that causes the injury. These include

(1) The risk distinctly associated with the [e]mployment all the obvious kinds of injury . . . . machinery breaking[, o]bjects falling, explosives exploding . . . such injuries are [c]ompensable.

(2) Neutral risks uncontrollable [c]ircumstances that do not originate in the [e]mployment but rather happen to befall the [e]mployee during the course of acts of God[, s]uch as lightening. Such injuries are [c]ompensable.

(3) Risks personal to the employee the [p]ersonal proclivities or contacts of the [e]mployee which give rise to the harm so that [e]ven though the injury takes place during the [e]mployment, compensation is denied.

The judge considered the parties' legal arguments and concluded

[I]n the present case the injuries sustained by the petitioner were solely due to his involvement in a nonwork related su-su pyramid type scheme operated without approval by a co-employee involving both workers and nonworkers. The su-su had no nexus whatsoever with the employment. The court believes the injuries stemmed from "risks" personal to the [employee].

The Court finds further that the petitioner confronted the coworker when he found out that payments were not being made and that this confrontation led to the attack which caused the injury.

The Court does not find any nexus between the injuries of the petitioner and the employment of the petitioner. The mere fact that it occurred at the workplace with a co-employee is not enough when no part of the activity which led to the injury was remotely connected to the employment.

He found in favor of the employer and dismissed the petition with prejudice. This appeal followed.

In our review of workers' compensation courts' decisions, we generally give substantial deference to their determinations, limiting our scope of review 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 . . . 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 citation omitted). However, where, as here, "[i]t is the legal consequences flowing from th[e] facts that form the basis of [the] appeal[, w]e owe no particular deference to the judge of compensation's interpretation of the law." Sexton v. Cty. of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 548 (App. Div. 2009) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Verge v. Cty. of Morris, 272 N.J. Super. 118, 123 (App. Div. 1994) ("[I]f there has been a mistaken application of the law to the facts, we must grant appropriate relief.")).

Applying this standard, based upon our careful review of the record and applicable legal principles, we affirm substantially for the reasons stated by the judge of compensation. We add only the following comments.

The mere fact that petitioner's injuries were sustained at work as a result of another employee's conduct does not satisfy the requirements of the Act. See Mule v. N.J. Mfrs. Ins. Co., 356 N.J. Super. 389, 397 (App. Div. 2003) ("[T]o trigger coverage under workers' compensation there must be a causal connection between the accident and the employment. Situs alone is not enough."). The Act requires that, for an injury to be compensable, the accident must "aris[e] out of and [be] in the course of employment." N.J.S.A. 34:15-7. "An accident arises 'in the course of' employment when it occurs (a) within the period of the employment and (b) at a place where the employee may reasonably be, and (c) while he is reasonably fulfilling the duties of the employment, or doing something incidental thereto." Crotty v. Driver Harris Co., 49 N.J. Super. 60, 69 (App. Div.), certif. denied, 27 N.J. 75 (1958). An assault can be an "accident" even though it had a "willful or criminal nature." Cierpial v. Ford Motor Co., 16 N.J. 561, 566 (1954).

In this case, petitioner was not fulfilling the duties of his employment when he was attacked by his assistant. To the contrary, he was sleeping in the break room in contravention of his employer's rules and regulations. Petitioner's injuries could not be compensable as being "sustained within the scope of the work-period and the work-place while [he] was engaged in personally motivated, but customary, or reasonably expectable activities," see Coleman, supra, 105 N.J. at 289, because he was violating his employer's rules against such conduct. Cf. Secor v. Penn Serv. Garage, 19 N.J. 315, 321 (1955) (observing that injuries that occur during the work day during "minor deviations," such as "stopp[ing] work to have a smoke, or to get some fresh air, or to use the telephone, or to satisfy other human needs incidental to [an employee] being at his place of employment," "are generally sufficiently related to the employment to call for compensation").

Assuming there was no prohibition against sleeping in the break room, petitioner's claim still could not be sustained because its origins were only related to his involvement in the susu scheme, a personal connection to the assistant that resulted in injuries for reasons wholly unrelated to their employment. See Sexton, supra, 404 N.J. Super. at 549-50 (citing Coleman, supra, 105 N.J. at 291-92; Howard v. Harwood's Rest. Co., 25 N.J. 72, 84-85 (1957)).

Contrary to petitioner's arguments, his claims are not supported by the cases he cites in which employees who were assaulted at work were permitted to receive compensation for their injuries. For example, in Howard, the Court held that an attack by one employee upon another caused by an employee's "insane delusion" was compensable. Howard, supra, 25 N.J. at 76-78, 86. However, the Court recognized "a third category of risks which do not have a sufficient causative relation to the employment," and were therefore not compensable. The Court explained that attacks motivated by, for example, a "desire of personal vengeance" were not compensable. Id. at 85. Similarly, in Martin v. J. Lichtman & Sons, 42 N.J. 81 (1964), the Court adopted the reasoning of the Appellate Division, which held that "even if the subject of the dispute is unrelated to the work, the assault is compensable if the work of the participants brought them together and created the relations and conditions which resulted in the clash." Id. at 83 (internal quotation marks and citation omitted). The Court still recognized, however, where "friction and strain arises between employees" for personal reasons, rather than "because of the enforced contact resulting from the employment," the employee's injuries will not be compensable. Id. at 84. Cited as examples of personal reasons were "personal vengeance stemming from contact with the [co-worker] outside of the employment, . . . [or] from a purely private relationship entered into by them during the course of the employment, as, for example, if they had embarked on a joint enterprise on the side and fought over it during working hours." Ibid.

We agree with the judge of compensation's conclusion that the attack in this case arose from personal motivation and was not attributable to a risk of employment or to uncontrollable circumstances. Had petitioner not been a participant in his assistant's susu, the attack would not have occurred. Once he became involved and questioned his assistant about the "invested" money, he was attacked at a location that just happened to be their place of employment.4


1 In an interview with detectives from the Monmouth County Prosecutor's Office, petitioner admitted when he goes into the break room he turns the lights off because he wants it to be dark during his break. At one point, he admitted he was asleep, but later changed his testimony.

2 In his interview, petitioner told the detective he believed he was attacked because his assistant's "conniving ways ha[d] been revealed to everyone. Everyone sensed it [and] we all talked about it . . . . "

3 The judge later noted he was relying on the Court's opinion in Coleman v. Cycle Transformer, Corp., 105 N.J. 285 (1986).

4 See Marky v. Dee Rose Furniture Co., 241 N.J. Super. 207, 215 (App. Div.) (citing Velasquez v. Indus. Comm'n, 581 P.2d 748 (Colo. App. 1978) (in which "a co-worker shot two coemployees at work because he believed they were responsible for obscene telephone calls made to his wife, [and] the court concluded that the shooting could have happened anywhere"), certif. denied, 122 N.J. 359 (1990).


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