NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
The recent case of Benimadho v. Somerville Borough Fire Department, A-2351-15T3 (App. Div. April 10, 2017) is fascinating because it draws a line between horseplay, which is ordinarily compensable, and conduct that goes beyond what the employer approves when an employee is away from the normal place of employment.
The case involved a serious brain injury to a young man, Jamie Benimadho, a volunteer firefighter with the Somerville Fire Department (SFD). Mr. Benimadho, the petitioner, drove to the Somerset County Emergency Services Training Academy (SCESTA) for a scheduled test, along with other volunteer firefighters. When he got there, he saw a fellow volunteer, Darin Watkins, putting Watkins’ cousin, Kenneth Wise, in a headlock from which Wise could not get free. Petitioner knew that Watkins frequently wrestled and “roughhoused” with his peers, including his cousin. Watkins was actually not punching his cousin or slamming him into objects, but petitioner considered this a “violent altercation,” not horseplay. Petitioner approached Watkins and his cousin, Wise, and told Watkins to “stop it.” Petitioner then pushed Watkins off his cousin and then grabbed Watkins around the waist.
At this point Watkins released his cousin and then proceeded to put petitioner in a headlock. Watkins asked petitioner whether he was done. Petitioner nodded and said, “I’m good,” and petitioner lightly punched Watkins in the ribs to signify submission. Watkins released petitioner, but when petitioner stood up, he seemed to pass out and then fell backward. Watkins tried to grab petitioner’s waist to hold him up, but he failed to stop petitioner’s fall onto asphalt. Petitioner suffered a skull fracture, subarachnoid hemorrhage, subdural hemorrhage, and a traumatic brain injury.
Petitioner testified at trial that he intervened between the two cousins “because like being a firefighter, like, that’s what you’re supposed to do, protect the citizens.” He also said he was trying to enforce the SCESTA rule against horseplay. Another volunteer firefighter, Cody Hresan, testified that he did not consider Watkins’ headlock with his cousin to be bullying but did feel it was too aggressive. Hresan also told Watkins to “calm down.”
Petitioner filed for workers’ compensation and the Judge of Compensation ruled the injury not compensable. The court noted that the SCESTA Rules and Regulations contain a prohibition against “abusive, profane or obscene language or behavior, [and] horseplay or any disturbance during class.” The SFD mission statement said that the goal of the organization was to protect the lives and property of the citizens of Somerville.
Petitioner argued that he felt that the mission statement impelled him to stop bullying and felt that he did not need permission from his employer to intervene in a situation like this. He admitted that no one told him to intervene and that he had broken up fights before joining the SFD.
Another volunteer firefighter, Joseph Stitley, testified that he had not been taught that breaking up fights was part of the job. The mother of Mr. Wise, who had been first placed in a headlock, testified that petitioner tried to save her son’s life. Several other witnesses on the scene thought the whole affair was horseplay.
The Judge reasoned that petitioner’s activities were not the type that he was assigned or directed to engage in by the fire company. The Judge noted that the New Jersey Statute at N.J.S.A. 34:15-36 provides that when one is away from the employer’s place of employment, an employee is only covered when he or she is engaged in the direct performance of duties assigned by the employer. The Judge concluded that petitioner’s intervention in what he perceived was a bullying incident was not an activity assigned or directed by the employer. Petitioner testified that he has intervened in the past in non-work situations to prevent bullying. He himself did not present this as a horseplay case, although others on the scene viewed it as horseplay.
On appeal, the Court studied the rule in Jumpp v. City of Ventnor, 351 N.J. Super. 44 (App. Div. 2002), aff’d, 177 N.J. 470 (2003). In that case the Court noted that someone who engages in a personal errand or activity (picking up personal mail along his work route) is not engaged in the direct performance of duties assigned by the employer. The Appellate Division said:
There was nothing in either the SCESTA rules or the SFD mission statement that authorized, let alone directed, petitioner to intervene in a physical altercation, even if he perceived the altercation as a bullying incident. The testimony provided adequate support for the finding that petitioner was engaged in a ‘personal activity’ rather than ‘in the direct performance of duties assigned or directed by the employer.
The Court affirmed the dismissal of this case. The case is interesting because it focused on the language in Section 36 for what constitutes work when one is away from the normal work site. It is unclear whether the Court was saying that the horseplay rule does not apply when one is away from the normal work site. In New Jersey, horseplay is compensable as to the victim. N.J.S.A. 34:15-7.1. That section reads:
An accident to an employee causing his injury or death, suffered while engaged in his employment but resulting from horseplay or skylarking on the part of a fellow employee, not instigated or taken part in by the employee who suffers the accident, shall be construed to have arisen out of and in the course of employment of such employee and shall be compensable under the act. . . .
The Appellate Division decision did not address the horseplay statute. If the Court had viewed Watkins’ activity as horseplay, the conclusion might have been different. The Judge of Compensation put emphasis on the fact that petitioner had no duty to intervene in the activities that Watkins and Wise were engaged in. She also emphasized that their activity was contrary to the Department Rules. In other words, she focused on the language of Section 36 dealing with activity away from the normal place of employment. There was really no discussion of whether this case fits the horseplay statute, namely whether petitioner engaged in conduct “not instigated or taken part in by the employee who suffers the accident.” Even if the case had been viewed as horseplay, petitioner would have had to deal with the above language in that he did take part in the activity by intervening in an altercation between cousins.
This decision raises an interesting question: would the outcome have been the same if these events had taken place at the Somerville Borough Fire Department instead of an off-site training academy? The language focused on by the Appellate Division in Section 36 regarding “direct performance of duties assigned or directed by the employer” only comes into play only because the petitioner was away from his normal work site. Viewed as an “assigned duties” case, the decision is undoubtedly correct because petitioner had no duty to intervene, and company rules prohibited horseplay. Although the case is unreported, it is important because it would seem to suggest that the horseplay provision does not apply to off-premises activities because when one engages in horseplay, one is never engaged in the direct performance of assigned duties.
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.