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What if two lawyers leave their separate offices to meet at a coffee shop to discuss a case? Is the commute to the coffee shop compensable for either or both of them? The answer was no in the context of the facts in Pilone v. County of Middlesex, A-1676-19, (App. Div. March 15, 2021).
Lynn Pilone, an assistant prosecutor for Middlesex County, arrived at her Bayard Street office in New Brunswick between 8:30 and 9:00 a.m. on March 21, 2017. Later in the day she knew she would be meeting with a victim-witness. Before that meeting she wanted to discuss the case with a colleague, Helen Zanatakos, a fellow assistant prosecutor with years of experience, who worked nearby in a different office. The two decided to meet at 11:00 a.m. at a donut/coffee shop one block away from Pilone’s office.
At the appointed 11:00 a.m. time Pilone left her office and walked to 25 Kirkpatrick Street to meet Zanatakos in front her office, and then the two of them started walking to the donut/coffee shop one block away. On the way, Pilone fell on the sidewalk in front of a parking lot near Kirkpatrick Street and was taken by ambulance to a hospital.
Pilone filed a workers’ compensation claim which the County of Middlesex denied on the ground that the injury did not arise from petitioner’s employment. Trial ensued with Pilone testifying that she was not on a lunch break when she fell. She simply wanted to discuss the case with Zanatakos face-to-face. It was a common practice for her to discuss cases outside the office as the inside offices were often too busy. Her intent was to buy coffee in the shop and then discuss the file, which she thought she carried with her at the time of her fall.
For her part Zanatakos testified that she also planned to discuss the case with Pilone because she was aware the victim-witness was dissatisfied with how her case had proceeded. She intended to provide guidance to Pilone. Sometimes the two of them would discuss personal matters, but this time the discussion was definitely about this particular file.
The Judge of Compensation granted the County’s motion to dismiss the case because petitioner’s fall occurred off work premises. The fall occurred on public property. On appeal petitioner argued that her fall was subject to the “special mission” exception. The Court relied on the Supreme Court decision in Hersh v. County of Morris, 217 N.J. 236 (2014). That case focused on the “situs of the accident” and “the degree of employer’s control.” The Court pointed out that the County had no control of the public walkway, nor of the coffee shop.
The Appellate Division noted that petitioner had not been directed to work offsite by her employer. “Although N.J.S.A. 34:15-36 extends compensability to duties assigned or directed by the employer, petitioner did not demonstrate that meeting at the donut shop was assigned or directed by the Prosecutor’s Office.” The Court distinguished another well-known case involving a drive to a coffee shop, namely Cooper v. Barnickel Enters, 411 N.J. Super. 343 (App. Div. 2010). In that case the Court noted that petitioner was directed to work away from the primary place of employment while being injured en route to purchase coffee. The Court said that here petitioner could have decided to meet in the office or outside the office, but there was no employer direction to meet at the donut/coffee shop.
The decision makes sense in not extending the special mission exception to a situation where employees decide for themselves (without employer direction) to meet off work premises.
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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.