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“If you require it, you buy it.” So said the Honorable Ray A. Farrington, former Supervising Judge of Compensation in Hackensack in reference to situations where an employer required an employee to perform a task that would otherwise be clearly not work related. The concept of compulsion is an important one to understand in the law. This concept must be contrasted with mere permission granted by an employer to perform some task or activity.
One of the best examples of compulsion comes from McCarthy v. Quest Intern. Co.,285 N.J. Super. 469 (App. Div. 1995), certif. denied, 134 N.J. 518 (1996). In that case the petitioner was a bookkeeper for Quest International Corporation. Her company purchased Unilever and scheduled a joint company picnic, sending out a memorandum stating that attendance was required. The purpose of the picnic was to help employees in both companies get to know one another.
Ms. McCarthy advised the head of personnel that she did not wish to attend. She was told that a salary deduction could be taken in that case. She was also advised that she should set an example for other employees and attend. The president of the company encouraged employees to socialize with other employees.
Based on this advice, McCarthy attended the joint company picnic. Once there she was asked by the president if she was going to participate in the tug-of-war. McCarthy took this as a mandate and then injured herself during the activity. She filed a workers’ compensation claim and won. Her employer appealed to the Appellate Division, arguing that McCarthy was just engaging in a recreational activity whose purpose was nothing more than promoting morale. The Appellate Division agreed with the Judge of Compensation that the injury was compensable, relying on reasoning of Professor Arthur Larson for the principle that an employer has the power to enlarge one’s job duties by assigning tasks outside the usual scope of employment. By directing the petitioner to perform these duties, the employer in effect bought the injury.
Years later the New Jersey Supreme Court expanded on this principle in Lozano v. Frank DeLuca Const., 178 N.J. 513 (2004). In that case the petitioner, Mr. Lozano, was a skilled mason who could not drive. After a long day of work on a large private property, the owner of the property asked Mr. Deluca, who was Mr. Lozano’s boss, if he wanted to take a ride with him on his large go-cart track. Mr. DeLuca and the owner drove around the go-cart track. Then Mr. DeLuca asked Mr. Lozano if he wanted to take a ride. Mr. Lozano declined because he could not drive. Mr. DeLuca repeated that Mr. Lozano should get in the go-cart and take it for a drive. At this point Mr. Lozano got into the cart, and he proceeded to seriously injure himself by driving into a parked truck. The Supreme Court said “that when an employer compels an employee to participate in an activity that ordinarily would be considered recreational or social in nature, the employer thereby renders that activity a work-related task as a matter of law.”
This principle make sense, but what if the employer is aware of the activity taking place and allows it, and the permitted activity leads to injury? Is that compensable? The Supreme Court said no in Jumpp v. City of Ventnor, 177 N.J. 470 (2003). In that case the petitioner was a pumping station operator who drove around the city inspecting stations. He would pass the town post-office during his drives from one station to the next. He asked the city administrator for permission to pull off the main road and get his personal mail during his route. The city administrator gave him that permission. While walking in the post office parking lot, petitioner fell and fractured his pelvis.
Mr. Jumpp argued that he had permission to make a slight deviation from his route to get his mail. The Supreme Court acknowledged that petitioner had permission to do what he did but felt that this activity constituted a major deviation from work. It said it made no difference whether the employer allowed the activity to take place: the act of getting one’s personal mail constituted a major deviation from work. Permission was not the same as direction.
So too in Sarzillo v. Turner Const. Co., 101 N.J. 114 (1985), a petitioner had permission to play a paddle ball game every day on the construction site during breaks. Mr. Sarzillo was injured while playing the game. The Court said that permission did not change the fact that the activity promoted nothing more than morale. Under N.J.S.A. 34:15-7, activities whose primary purpose is to promote morale or health are not compensable.
Employers must be careful to consider whether they have directed or required an activity or whether they have merely permitted something to occur. If an employer does not want to expand the job duties, the employer should make it clear in memoranda that the activity – whether it is a holiday party, picnic or bowling night — is not required.
This lesson emerged in Rose v. Joey Sinopoli’s Haircutters, No. A-0049-05T1 (App. Div. August 14, 2006), certif. denied, 189 N.J. 426 (2007). The petitioner suffered a serious injury leaving a coffee shop on the way to work. She always stopped to purchase coffee for co-employees and understood that this was part of her job. She was reimbursed for the cost. Her employer testified that if she did not do this, someone else would have had to do so. Again, the decision makes sense because the employee felt a sense of compulsion and employer direction in purchasing coffee each morning. Had the employer not made this a requirement, the injury would not have been held compensable.
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 email@example.com.