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In a surprising but unreported decision, the Appellate Division affirmed an award to a police officer who fell in the municipal parking lot on December 9, 2011 on a day when he was not supposed to be at work. The officer said he came to work to collect his paycheck and also to check his court schedule while he was there. The case is Grawehr v. Township of East Hanover, A-1686-15T3 (App. Div. June 29, 2017).
The accident involved a slip and fall on ice which led to shoulder surgery. The Township denied the claim since petitioner was not working that day, and no one asked him to come to work. The petitioner admitted that he was coming to work to get his paycheck, but he said that he also wanted to check his personal folder for any new subpoenas for scheduled court dates. There had been problems with police officers missing scheduled appearances due to a recent merger with the Township of Hanover. A township Lieutenant testified that it was not uncommon for the more diligent officers to come in on their days off to check on their court files.
Even though Officer Grawehr never failed to appear for court and had not been disciplined (unlike others) for failing to come to court, and even though the next court date was not until December 22, the Judge of Compensation found for petitioner and awarded petitioner 27.5% or $41,187 for permanency and medical expenses. The Appellate Division affirmed. The theory of compensability in this case was the existence of a mutual benefit to the Township and the employee by these impromptu visits to the police department on days off. The Township denied that there was any benefit to it at all.
The “mutual benefit” theory has been questioned as recently as May 1, 2017 in Liu v. 4D Security Solutions, Inc., A-3591-15T1 (App. Div. May 1, 2017). In that similarly unpublished case a different appellate panel found that the mutual benefit doctrine did not survive the 1980 amendments. That appellate panel rejected the doctrine completely just one month before this decision. The decision in Grawehr makes no mention of the Liu decision.
In Grawehr, the Appellate Division struggled mightily to find case law supporting the existence of a mutual benefit doctrine. The only case it cited was a pre-1980 case called Salierno v. Micro Stamping Co., 136 N.J. Super. 172 (App. Div. 1975), where a heart attack experienced by a worker during contract negotiations on behalf of his union was found to be compensable. That case is not really a mutual benefit decision, and it would likely not meet the current law dealing with the requirements for compensability of heart attacks. In essence, the panel in Grawehr assumed the existence of the mutual benefit doctrine even though the issue was whether it exists at all.
It is clear that an injury that occurs when an employee comes into work simply to pick up a paycheck is not compensable. Miller v. Saker Shoprite, A-3746-13T2 (App. Div. November 13, 2015). In this practitioner’s opinion, the Grawehr decision is open to criticism because the appellate panel never really found a case that supported the existence post 1980 of the mutual benefit doctrine in New Jersey. Interestingly, neither could the appellate panel in Liu cited above. This practitioner is aware of only two reported post-1980 decisions where the court based its decision on the existence of the mutual benefit doctrine. One case was Daus v. Marble, 270 N.J. Super. 241 (App. Div. 1994) and the other was Mahon v. Reilly’s Radio Cabs, Inc., 211 N.J. Super. 28 (App. Div. 1986). These cases were not mentioned in this matter or in Liu. We will need clarification from a future reported appellate division panel or the Supreme Court on whether the mutual benefit doctrine, as applied to trips to and from work, still exists – or exists in any other context.
This case illustrates the problem inherent in the mutual benefit doctrine when it is applied to cases involving trips to work on non-work days. The doctrine can be interpreted so broadly that it can create a massive end-around to the requirement that all accidents must meet the test of “in the course of employment.” Anyone who comes into work to retrieve something and falls at work after hours or on days off can argue that there was a mutual benefit conferred on the employer by coming to work. Do both parties have to agree that there was a benefit? The township said there was no benefit in this case. It is an extremely subjective test. The obvious reason the claimant was coming to work in this case was to pick up his paycheck. But that activity alone is not compensable. Further, the next court date was 13 days away, so the decision in favor of compensability makes very little sense under any analysis.
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.