State News : New Jersey

Samuel Kamenette drove over-the-road trucks for Sangillo & Sons.  He was injured on October 9, 2015  in the State of Wyoming. He was driving a load from California to New Jersey.  He slept the night before in his truck, and in the morning he drove for an hour to a Flying J, part of a Pilot Flying J nationwide chain.  He purchased over 50 gallons of fuel, parked the truck, went into the Flying J, and he took a shower.  He then dressed in the shower area preparing to renew his drive.  He sat on a bench to put on his boots, but the bench collapsed causing injuries.  He alerted his employer of the injury and then drove to a clinic for treatment, obtaining pain killers, before driving back to New Jersey.

Kamenette brought a workers’ compensation claim and also settled with Pilot Flying J for $40,000 in a third party action.  He filed a motion for medical and temporary disability benefits in the workers’ compensation case, and the Judge of Compensation ruled in his favor, finding that the accident arose from the employment.  Sangillo and Sons appealed.

At trial Kamenette testified that he needed to take the shower partly because it is an appearance issue.  He represents his company.  He also said that a shower keeps him more alert. The Appellate Division rejected both rationales.  It said that Kamenetti did not testify that he had been drowsy and said that since petitioner had no deliveries to make, the appearance argument also failed.   The Appellate Division felt that his showering was therefore “indistinguishable from the showering of countless on-premises employees in their homes every day before going to work.”   The Court said:

It would not be consonant with the language or intent of the 1979 amendments to extend workers’ compensation to cover employees engaging in pre-work activities that will make them more refreshed, efficient, alert, fragrant, or attractive during the work day, such as bathing, eating breakfast, drinking coffee, exercising, or dressing.  Treating these pre-work activities as covered would contravene the requirement that the employee “engaged in the direct performance of duties assigned or directed by the employer.”

The Appellate Division further commented as follows: “Thus, had Kamenetti stayed in a motel or truck stop with a shower, showered there, and injured himself while dressing, he would be equally ineligible for compensation as an on-premises employee who slept, showered, and dressed at home.  However, he chose to stay at a ‘mom and pop’ truck stop that had no showers, and therefore had to go elsewhere to shower. The choice does not change the result.”

This statement in the preceding paragraph seems to run counter to Johnson-Tucker v. Plainfield Board of Education, No. A-5078-06T3 (App. Div. July 1, 2008).  There a petitioner attended a Board approved seminar in Georgia.  She was unable to get a room in the hotel where the seminar was located.  Before the seminar began, she went to breakfast in her hotel, and the chair she was sitting in collapsed causing injury.  The Appellate Division held that this injury was in fact work related, embracing the theory that injuries in the hotel would be compensable because getting a meal was necessary, even if the petitioner was not at the hotel where the seminar took place yet.

The Appellate Division also rejected the argument that Mr. Kamenetti’s injury was a minor deviation from employment.  The Court distinguished one case involving an off-premises compensable coffee break. In that case the injured employee was a foreman who went to the union hall to discuss a new job with a union instructor.  Since the instructor was busy, the foreman took his break and drove five miles to get a cup of coffee as there was no coffee in the union hall.  He was injured in a car accident on the way.  The Appellate Division found that case compensable on the theory that off-premises employees are entitled to the same coffee breaks as on-premises employees, but it felt it had no application to this set of facts.

In the end, the Appellate Division found that the petitioner’s shower was a “personal activity,” not a duty.  An attorney for COSH filed an amicus curiae brief, arguing that the petitioner’s shower was covered under the “Personal Comfort Doctrine,” which New Jersey recognizes.  Certain activities like going to a restroom, going on a coffee break or smoking a cigarette have historically been accepted in most states under the Comfort Doctrine.  Counsel argued that the need to take a shower for someone who drives across the country fits squarely within this doctrine.  The Appellate Division would not entertain this interesting argument because the issue had not been raised at the Division of Workers’ Compensation level.

This case is not reported but it underscores how challenging it is to differentiate what is or is not a minor deviation.  The five-mile drive for a cup of coffee was considered a minor deviation, but the Appellate Division in this case felt that the shower was purely personal and therefore a major deviation.  The case can be found at Kamenetti v. Sangillo & Sons, A-0394-16T3 (App. Div. August 8, 2018).

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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.