State News : New Jersey

Most assaults by an employee on another employee on work premises are compensable for the victim of the assault, but the facts inJoseph v. Monmouth County, A-4144-13T3 (App. Div. December 14, 2015) were most unusual.

Lesley Joseph was a nursing supervisor at a Monmouth County owned nursing home.  On June 9, 2011, Mr. Joseph was taking a break in the break room, had his feet up and his eyes closed, when his female assistant attacked him with a hammer, causing multiple injuries and cuts on his face and head.  Joseph managed to wrest the hammer away from his attacker and asked for help.  Police and paramedics responded and took him to the hospital.  Joseph filed a workers’ compensation claim which the County investigated, finding circumstances behind the attack that cast grave doubt on the compensability of the claim.

Through its investigation, the County learned that Joseph had become involved in a pyramid scheme run by his assistant.  This scheme was called a “susu,” which required an investment in which participants put money into a pot and then take turns sharing the amounts collected.  An example was provided where 20 employees would contribute $100 each week, then over the course of 20 pay periods, each employee would take turns collecting $2,000 during his or her assigned week.  No interest was paid.

Joseph participated in the “susu” on three occasions but never collected any funds.  Participants became concerned when the petitioner’s assistant said she had an upcoming wedding.  Petitioner tried to talk to his assistant, but she avoided him.  On June 9, 2011, he approached his assistant and talked about what rounds needed to be done on her shift but then started telling her that everyone in the “susu” was upset because people in the pool who were supposed to be paid the week prior had not yet been paid.  Joseph emphasized that he himself was supposed to be paid the next week.  The assistant admitted that she had to use some of the money but assured petitioner that he would get his money.  Shortly thereafter the assistant attacked petitioner and eventually pleaded guilty to aggravated assault with a deadly weapon.

The Honorable Lionel Simon III, Supervising Judge of Compensation, Monmouth vicinage, held that the confrontation between the two employees did not arise from work but rather from the fact that Joseph felt he was not going to be paid on time.  Judge Simon further found that there was no nexus to work at all. The mere fact that the attack happened at work was not sufficient for coverage because it did not arise from work activities. Petitioner appealed the dismissal of his case.

The Appellate Court said, “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.”  The Court said that the attack arose from personal motivation and was not attributable to a risk of employment.  “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.”

The petitioner argued that work brought the two employees together and created the conditions that resulted in the confrontation.  However, the Judge of Compensation and the Appellate Division both noted that this was a case where the friction between the two employees arose from purely personal reasons unrelated to the work that they performed at the county nursing home.

This decision is a significant one because it illustrates the exception to the general rule that the victim of an assault at work at the hands of a co-employee is generally covered.  If the origin of the animus is purely personal, having nothing really to do with work, neither the victim nor the aggressor is covered.  This case was successfully handled at both the trial level and the appellate level by Carla Aldarelli, Esq., partner in Capehart Scatchard.

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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.