State News : New Jersey

There is a fairly widespread belief that any injury that occurs at work must be covered under workers’ compensation.  But that is not true.  There are several categories of injuries that happen at work which simply are not compensable.  Injuries which do not arise out of employment are not covered in workers’ compensation.  Not only must an injury occur during work, but it must arise out of work. In every state there are a number of useful doctrines that help explain and expand on the definition of “not arising out of employment” for traumatic injuries.

*  Idiopathic Claims and Personal Risk Claims

These two doctrines are very similar.  The concept of idiopathic applies when the employee has a preexisting medical condition which is the true cause of the injury.  For example, an employee with severe osteoarthritis is walking down the corridor at work when his knee locks, without striking anything or falling.  The doctor examines and advises that further knee damage was caused by the act of walking on account of severe osteoarthritis. This is a classic idiopathic claim because the injury was entirely personal to the employee, not caused by work. 

Consider also an employee with prior shoulder dislocation issues who puts on her coat to go home after work and experiences a new dislocation of her shoulder. Although this happened at work, it was not caused by work.  All the petitioner was doing is something that we do when we leave work on a cold day:  namely we put on our coats.  The dislocation of the shoulder would be considered idiopathic and unconnected to the activities of work.  

The personal risk doctrine is very similar to the idiopathic claim doctrine but it better fits a situation where there is no prior medical condition.  One of the best cases for this doctrine is Coleman v. Cycle Transformer Corp., 105 N.J. 285 (1986).  The petitioner got a permanent wave solution in her hair, and the next day at work, she lit a cigarette prompting her hair to burst into flames and resulting in burns. The Supreme Court found this injury not compensable because the risk was personal to the employee due to her permanent wave solution, and the connection to work was negligible.

*  Deviation from Employment

This doctrine has two major applications.  The first applies to an activity that is either unconnected to work or so far afield that a reasonable person would never do it.  For example, a lawyer is outside his office and calls a colleague on his cell phone who is working at his desk, asking the colleague to come outside and help carry work files into the office. The colleague decides not to walk down the steps or take the elevator but instead opens his window and jumps 20 feet to the ground breaking his leg. This activity of jumping from one’s window is so hazardous that no reasonable person would do it.  The injury clearly happened during work but it would be a deviation from employment.  An employer should not have to insure against inherently dangerous activities that no reasonable person would undertake.

Similarly, in Money v. Coin Depot Corp., 299 N.J. Super. 434 (App. Div.), certif. denied, 151 N.J. 171 (1997), the petitioner was an armored truck security guard who began playing Russian Roulette with his gun while he and his colleagues were transporting money.  The gun discharged and killed the petitioner. The court found that this activity was a major deviation from employment because it was so inherently dangerous.

The second type of deviation from employment is found in connection with travel that is unconnected to work.  The leading case is Jumpp v. City of Ventnor, 351 N.J. Super. 44 (App. Div. 2002), aff’d, 177 N.J. 470 (2003).  In that case the petitioner worked as a pumping station operator, driving throughout the city.  He got permission from his supervisor to stop and get his mail in the morning as he was driving along the main road in town to the next pumping station.  He fell and fractured his pelvis returning to his municipal vehicle parked in the post office lot after getting his mail.  The court considered petitioner’s injury to be a major deviation because the activity of getting his own mail, even it if it was permitted, had no connection to his work.

*  Intentional Self Injury

Employees who deliberately injure themselves will almost always be denied compensation.  If an angry employee punches a wall in an argument at work and breaks her hand, that injury would not be compensable because the action of punching a wall is highly likely to cause self injury.  In the same way, if Employee A assaults employee B and Employee A is injured in that process, courts will almost always find this to be self-inflicted and not compensable.  The injury to Employee B, of course, would be covered as the victim of an assault.

*  Recreational Activities

Suppose an employee decides during a break in the morning to pull out some rope, moves away from his desk, and begins to jump rope for a few minutes, only to get her foot tangled up in the rope leading to an injury.  Would this be covered in workers’ compensation?  It did happen at work, right?  Under New Jersey law this would not be compensable because recreational activities that just promote the health of the employee are not covered.  For a recreational activity to be covered it must create a benefit to the employer greater than health and morale and must be a regular incident of employment.  Few recreational activities can meet this test of promoting a benefit to the employer greater than health and morale.  The same is true of social activities.

However, if two employees are fooling around at work and kidding each other, and then one throws a pencil at the other as a joke, but the pencil strikes the other employee in the eye, the judge will probably view this activity as horseplay  – – not a recreational activity.  Unlike the law in many states, horseplay is NOT a defense in New Jersey.  Horseplay is always compensable as to the victim and sometimes compensable as to the instigator. There is a line between horseplay and assaults/altercations, and outcomes may differ depending on whether that line is crossed.

There are certainly other doctrines that overlap some of the above examples. There are a few cases which discuss the doctrine of “abandonment of employment.” In my view that doctrine is really synonymous with deviation from employment.  The differences are subtle.  One can say safely say that when a  traumatic claim is denied for an activity which occurred at work, one of the above doctrines will constitute the legal basis for the denial under the broad heading of not arising from the employment.

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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.