ARVIND BHUT v. ALUMINUM SHAPES

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4652-17T1

ARVIND BHUT,

         Petitioner-Respondent,

v.

ALUMINUM SHAPES,

     Respondent-Appellant.
_____________________________

                   Submitted January 17, 2019 – Decided June 10, 2019

                   Before Judges Simonelli and O'Connor.

                   On appeal from the New Jersey Department of Labor
                   and Workforce Development, Division of Workers'
                   Compensation, Claim Petition No. 2017-23357.

                   Marshall Dennehey Warner Coleman & Goggin, PC,
                   attorneys for appellant (Walter F. Kawalec, III, on the
                   briefs).

                   Kotlar, Hernandez & Cohen, LLC, attorneys for
                   respondent (Timothy P. Search, on the brief).

PER CURIAM
      Respondent Aluminum Shapes appeals from a May 14, 2018 Division of

Workers' Compensation order granting petitioner Arvind Bhut medical and

temporary disability benefits of $15,583.54, as well as $300 in costs. After

reviewing the record and applicable legal principles, we affirm.

      In 2014, petitioner was hired by respondent as a technician to fix

manufacturing equipment at its plant. In 2017, petitioner injured his shoulder

at respondent's facility during his shift. Petitioner filed an employee claim

petition with the Division of Workers' Compensation against respondent, and

subsequently filed a motion for medical and temporary disability benefits.

Because the manner in which petitioner was injured was disputed, an evidentiary

hearing was conducted. We recite the salient evidence adduced during that

hearing.

      Petitioner testified as follows. On May 21, 2017, he entered an employee

locker room, where co-worker John Stevens was sitting with his feet up on a

bench. Petitioner twice asked Stevens to move his legs so petitioner could pass

by, but Stevens refused. Petitioner jumped over Stevens's legs but petitioner's

feet "caught" Stevens's leg as petitioner did so. Stevens became angry and threw

a cup of soda at petitioner. To calm himself down, petitioner left the room.




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      Minutes later, petitioner decided to return to the locker room because he

needed to wash his hands. However, he encountered Stevens outside of the

locker room in a narrow walkway only four to six feet wide. Stevens was

holding a pizza box and, when petitioner attempted to pass him, Stevens

"pushed" the pizza box at petitioner. To keep the box away from him, petitioner

swung his arm toward Stevens and, in doing so, hit a hat Stevens was wearing.

Stevens reacted by throwing petitioner to the floor, injuring petitioner's

shoulder. Petitioner testified that he was not trying to strike Stevens when he

swung at him.

      Stevens testified that his feet were on a bench when petitioner entered the

locker room. Petitioner did not ask Stevens to remove his feet from the bench

but, instead, petitioner pushed and kicked them off the bench. Moments later,

Stevens stood up and petitioner stepped in front of him, causing Stevens to spill

Coke on petitioner. The "conversation" between them became "heated" and two

other co-workers separated them. Petitioner left the room and, minutes later,

Stevens also left the room, holding a box in his hand. Stevens saw petitioner

walking toward him. Stevens's description of the ensuing events was as follows:

            I'm holding onto this box, and I get to him and he's still
            coming at me and he's like – I don't know what to do,
            and I just kind of side-stepped with this box around
            him, to let him go, and the next thing I'm hit in the back

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            of the head. . . . I grab[bed] his arm and we kind of
            bounce[d] off of that locker and we land[ed] on the
            floor . . . . I ended up on top of him. I don't – I don't
            know if we bounced off of two cabinets or what, but
            we're on the floor and I got his arm, and I'm standing
            up and Kevin grabs me and pulls me off of him, and Zac
            – I believe it was Zac had Arvind, and everything got
            separated.

Stevens specifically denied pushing the box at petitioner just before Stevens was

hit on the back of the head.

      At the conclusion of the hearing, the judge of compensation issued an oral

decision from the bench and, after respondent filed a notice of appeal, issued a

written decision pursuant to Rule 2:5-1(b). In the latter decision, the judge

found there was a causal connection between the subject incident and petitioner

and Stevens's employment with respondent. The judge stated:

            In the instant case the altercation between [petitioner
            and Stevens] occurred within the period of employment
            and at a place the employee may reasonably be to wit:
            the foreman's locker room and while they were
            reasonably fulfilling the duties of their employment or
            doing something incidental thereto to wit: eating lunch.
            I therefore find a causal connection between the
            altercation and petitioner[']s employment.

                  ....

                   In the instant case I find that the work of the
            participants brought them together and created the
            relations and conditions which resulted in the clash.
            The record before the [c]ourt is devoid of any contact

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              between Stevens and the [p]etitioner outside their place
              of employment.

                    ....

                   [T]he instant case[] is devoid of any personal
              nonwork animus between the petitioner and Mr.
              Stevens.

        The judge specifically determined that neither petitioner nor Stevens had

a willful intent to injure the other. In her oral decision, she stated, "[t]he

reactions of both Mr. Stevens and the petitioner were in response to what each

felt was aggressive behavior." In her written decision, the judge also noted that

petitioner was credible when he testified he did not intend to strike Stevens when

he pushed the pizza box away from himself. Concluding petitioner's injury arose

out of and during the course of his employment, the judge entered an order on

May 14, 2018 directing that respondent pay petitioner's medical expenses and

temporary disability benefits in the amount of $15,583.54, as well as costs of

$300.

        On appeal, respondent primarily contends the judge's factual findings are

not supported by the record. Respondent's interpretation of the facts is that

petitioner intentionally struck Stevens on the back of the head. Thus, respondent

argues, because petitioner's injury was the result of his aggression, he is not



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entitled to benefits under the Workers' Compensation Act,  N.J.S.A. 34:15-1 to -

146.

       We give substantial deference to the factual determinations of workers'

compensation courts, limiting our 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) (quoting Close v. Kordulak

Bros.,  44 N.J. 589, 599 (1965)). "Deference must be accorded the factual

findings and legal determinations made by the Judge of Compensation unless

they are 'manifestly unsupported by or inconsistent with competent relevant and

reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting

Perez v. Monmouth Cable Vision,  278 N.J. Super. 275, 282 (App. Div. 1994)).

       In accordance with  N.J.S.A. 34:15-7, an employee may be eligible for

workers' compensation benefits if injured in an "accident arising out of and in

the course of employment . . . ."        "[T]o trigger coverage under workers'

compensation there must be a causal connection between the accident and the

employment." Mule v. N.J. Mfrs. Ins. Co.,  356 N.J. Super. 389, 397 (App. Div.

2003). "An accident arises 'in the course of' employment when it occurs (a)


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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. 1958).

      Guided by these legal principles, we affirm substantially for the reasons

stated by the judge of compensation, whose decision was supported by sufficient

credible evidence on the record as a whole. R. 2:11-3(e)(1)(D). We add only

the following comments.

      The judge of compensation found as fact that neither petitioner nor

Stevens intended to hurt the other when they encountered each other outside of

the locker room. Stevens's and petitioner's actions were merely self-protective.

Petitioner swung his arm toward Stevens because he believed Stevens was

pushing the pizza box into him, and Stevens grabbed petitioner's arm because

he believed petitioner intended to hurt him. As the judge succinctly stated,

"[t]he reactions of both Mr. Stevens and the petitioner were in response to what

each felt was aggressive behavior." Because petitioner was injured as a result

of an accident that arose out of and in the course of his employment, his injury

is compensable under the Workers' Compensation Act. See  N.J.S.A. 34:15-1.

      Affirmed.


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