SAMUEL KAMENETTI VS. SANGILLO & SONS, LLC (DIVISION OF WORKERS' COMPENSATION) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0394-16T3
SAMUEL KAMENETTI,
Petitioner-Respondent,
v.
SANGILLO & SONS, LLC,
Respondent-Appellant.
__________________________________
Argued December 19, 2017 – Decided August 8, 2018
Before Judges Yannotti and Leone.
On appeal from the New Jersey Department of
Labor and Workforce Development, Division of
Workers' Compensation, Claim Petition No.
2015-030953.
David P. Kendall argued the cause for
appellant (Law Office of Ann DeBellis,
attorneys; Ann DeBellis, of counsel; David P.
Kendall, on the briefs).
Robert B. White, III, argued the cause for
respondent (Garces, Grabler & LeBrocq, PC,
attorneys; Robert B. White, III, on the
brief).
Richard B. Rubenstein argued the cause for
amicus curiae New Jersey Advisory Council on
Safety and Health (Rothenberg, Rubenstein,
Berliner & Shinrod, LLC, attorneys; Richard
B. Rubenstein, on the brief).
PER CURIAM
Respondent Sangillo & Sons, LLC (Sangillo) appeals from an
August 10, 2016 order of the Judge of Workers' Compensation (JWC).
The JWC found petitioner Samuel Kamenetti's injuries arose out of
and in the course of his employment. We reverse and remand.
I.
The following facts are taken from the JWC's August 16, 2016
oral opinion, and the testimony of Kamenetti whom the JWC credited.
Sangillo is a trucking company headquartered in Manalapan
that has five trucks used for over-the-road truck driving.
Kamenetti has been exclusively employed by Sangillo for over four
years as an interstate truck driver carrying loads throughout the
United States. The tractor-trailer he drove was owned and insured
by Sangillo, and bore Sangillo's name and DOT number.
Kamenetti used Sangillo's fleet credit card to pay for fuel,
and he was reimbursed for tolls. Kamenetti was paid 25% of the
"load base," the fee Sangillo received for transporting the load.
Sangillo's appellate Statement of Facts (SOF), which Kamenetti
"accepts and adopts," states Kamenetti was not paid by the hour
or the mile.
In October 2015, Kamenetti was hauling a time-sensitive load
of produce from California to New Jersey. On October 8, he stopped
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for the night at a small "mom and pop" truck stop in Wyoming.
Such stops have parking but do not have other amenities such as
showers. Kamenetti slept in the truck that night.
After waking up on October 9, Kamenetti needed a shower. He
drove for an hour to a Flying J, a larger, full-service truck stop
and part of the Pilot Flying J nationwide chain. It offered a
free shower to commercial drivers purchasing fifty gallons of
fuel. He purchased over fifty gallons of fuel, parked the truck,
went into the Flying J, and took a shower. Kamenetti then dressed
in the shower area. He sat on a bench to put on his boots.
Unfortunately, the bench collapsed, causing him to fall and be
injured, about thirty minutes after he arrived at the Flying J.
Kamenetti alerted Sangillo. He drove to a clinic several
miles away where he was given pain medication. He then proceeded
on the journey to drop off the cargo in New Jersey. He later
accepted Pilot Flying J's settlement offer of $40,000.
Kamenetti filed a claim petition for workers' compensation.
He filed a motion seeking medical treatment and temporary benefits.
The JWC heard testimony from Kamenetti and Sangillo's owner Jeffrey
Sangillo. On August 10, 2016, the JWC granted the motion. On
August 16, the JWC issued its oral opinion finding Kamenetti's
injuries "arose out of and in the course of his employment." On
August 22, the JWC amended its order.
3 A-0394-16T3
Sangillo appeals. We permitted the New Jersey Advisory
Council on Safety and Health (COSH) to appear as amicus curiae.
II.
"Appellate review of [factual findings in] workers'
compensation cases is 'limited to whether the findings made could
have been reached on sufficient credible evidence present in the
record . . . with due regard also to the agency's expertise[.]'"
Hersh v. Cty. of Morris, 217 N.J. 236, 242 (2014) (quoting Sager
v. O.A. Peterson Constr., 182 N.J. 156, 164 (2004)). Nonetheless,
"the judge of compensation's legal findings are not entitled to
any deference and, thus, are reviewed de novo." Id. at 243.
Sangillo does not challenge the JWC's factual findings but only
his legal conclusions from those findings. Thus, we must hew to
our de novo standard of review.
III.
The Workers' Compensation Act, N.J.S.A. 34:15-1 to -128,
provides that "[w]hen employer and employee shall . . . accept the
provisions of this article compensation for personal injuries to,
or for the death of, such employee by accident arising out of and
in the course of employment shall be made by the employer without
regard to the negligence of the employer[.]" N.J.S.A. 34:15-7
(emphasis added). This "'broad statutory language'" led to
decisions upholding "countless awards of workers' compensation
4 A-0394-16T3
benefits." Hersh, 217 N.J. at 243 (citation omitted). It also
resulted in "unjustified workers' compensation costs that [in the
late 1970s were] among the highest in the nation." Jumpp v. City
of Ventnor, 177 N.J. 470, 476-77 (2003) (quoting Sen. Labor,
Indust. and Professions Committee, Joint Statement to Senate Comm.
Substitute for S. No. 802 and Assemb. Comm. Substitute for A. No.
840, 1 (Nov. 13, 1979)) (Joint Statement).
"As a result, in 1979, the Legislature amended the Workers'
Compensation Act, updating the definition of 'employment' to be
more restrictive." Hersh, 217 N.J. at 244. The amendments
provided "relief from the far-reaching effect of the [pre-1979]
decisions by defining and limiting the scope of employment." Ibid.
(quoting Joint Statement at 2). Specifically, "the Legislature
for the first time defined on-premises and off-premises
employment." Jumpp, 177 N.J. at 480.
Employment shall be deemed to commence when
an employee arrives at the employer's place
of employment to report for work and shall
terminate when the employee leaves the
employer's place of employment, excluding
areas not under the control of the employer;
provided, however, when the employee is
required by the employer to be away from the
employer's place of employment, the employee
shall be deemed to be in the course of
employment when the employee is engaged in the
direct performance of duties assigned or
directed by the employer; but the employment
of employee paid travel time by an employer
for time spent traveling to and from a job
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site or of any employee who utilizes an
employer authorized vehicle shall commence and
terminate with the time spent traveling to and
from a job site or the authorized operation
of a vehicle on business authorized by the
employer.
[N.J.S.A. 34:15-36 (emphasis added).]
Thus, "[o]n-premises employment (as its terminology directly
implies), begins when the employee gets to the place where he or
she works (to the premises), and ends when the employee leaves
that place; off-premises employment, however, relates to the doing
of the work 'assigned or directed by the employer.'" Jumpp, 177
N.J. at 480 (quoting N.J.S.A. 34:15-36). "The employee who is
'required by the employer to be away from the employer's place of
employment [is] in the course of employment,' when he or she is
actually carrying out the work assignment and is therefore eligible
for benefits if injured at the point." Ibid. (quoting N.J.S.A.
34:15-36).
By the new statutory language, "the Legislature sought to
reduce costs by, among other things, 'sharply curtail[ing
compensability for] off-premises accidents,'" including ending
compensability for "'off-premises injuries sustained during lunch
hour and injuries sustained while traveling at the employer's
direction but deviating from a direct line of travel to pursue a
purely personal activity.'" Jumpp, 177 N.J. at 477 (quoting Hon.
6 A-0394-16T3
Alfred J. Napier, Impact of the Reform Act of 1980, 96 N.J. Lawyer
17, 18 (Summer 1981)) (Napier). "In furtherance of that 'clear
legislative mandate sharply curtailing compensability for off-
premises accidents,'" New Jersey decisions have "recognized the
legislative intent to focus on the performance of the work, thereby
limiting the reach of the workers' compensation statute," and
"barred recovery because the activities were personal in nature."
Id. at 482 (quoting Jumpp v. City of Ventnor, 351 N.J. Super. 44,
52 (2001), aff'd, 177 N.J. 470 (2003)).
In Jumpp, our Supreme Court approved those decisions. Id.
at 480-83. The Court "h[e]ld that when an employee is assigned
to work at locations away from 'the employer's place of
employment,' eligibility for workers' compensation benefits
generally should be based on a finding that the employee is
performing his or her prescribed job duties at the time of the
injury." 177 N.J. at 482.
The Court applied that holding to bar compensation to an
employee whom the city required to drive from site to site
throughout a city performing his duties, using a city-owned
vehicle. Id. at 473-74. The city "permitted [him] to make brief
stops at local establishments for food and beverages or to use the
restroom," and "to retrieve his personal mail from a local post
office." Id. at 474. One day, leaving his city vehicle running,
7 A-0394-16T3
he went to the post office to check his mail, and slipped while
walking back to his city vehicle. Ibid. The Supreme Court found
his injury was not compensable, because "'an employee who deviates
from the temporal and spacial limits of his . . . employment tasks
for the sole purpose of engaging in a personal errand or activity
is simply not "engaged in the direct performance of duties"' as
required by the statute." Id. at 475 (quoting Jumpp, 351 N.J.
Super. at 52).
Straightforward application of the definition of off-premises
"employment" in N.J.S.A. 34:15-36 and Jumpp indicates Kamenetti
cannot claim workers' compensation. When he was injured, he was
putting on his boots after showering. He was not "performing his
. . . prescribed job duties at the time of the injury." Jumpp,
177 N.J. at 482. Thus, he was not engaged in the direct performance
of duties assigned or directed by the employer," and was not "in
the course of employment" when he injured himself while putting
on his shoes. N.J.S.A. 34:15-36. His injury was non-compensable
because "the statute provides that [off-premises employees] are
to be compensated only for accidents occurring in the direct
performance of their duties." Jumpp, 177 N.J. at 483.
Nonetheless, in his testimony, Kamenetti offered two
rationales why "[a] shower is most important." First, "[i]t
refreshes us, helps us be more alert." Second, "if I'm delivering
8 A-0394-16T3
that afternoon or even early that morning, it's an appearance
issue because not only do I represent myself as an individual, but
I'm also representing the company," which could lose contracts if
he was "stinking" when he made a delivery.
First, the "alertness" rationale did not support the award
because there was no testimony that Kamenetti took the shower
because he was getting drowsy behind the wheel. Rather, Kamenetti
testified that he slept the night at the "mom and pop" truck stop,
awoke, needed a shower, and drove to the Flying J to shower.
The JWC generally stated he "believe[d] that a truck driver
who stops to fuel and to shower is doing so so that he can continue
the safe and efficient performance of his duties." However, the
JWC made no finding that Kamenetti was drowsy or otherwise unable
to efficiently perform his duties without the shower, nor was
there was any such testimony.
Second, the "delivering" rationale did not apply because
Kamenetti was not making a delivery that day, or early the next
morning. He was in Wyoming, and had several days before he had
to make the delivery in New Jersey.
Given the inapplicability of those rationales, Kamenetti's
showering was indistinguishable from the showering of countless
on-premises employees in their homes every day before going to
work. Many of those employees shower so they will be refreshed
9 A-0394-16T3
and clean, and so they will not have body odor when they represent
themselves and their company. Such employees are not "in the
course of their employment" if they slip in the shower or fall
while putting on their clothes or shoes. N.J.S.A. 34:15-7.
Rather, they are engaged in personal hygiene and personal grooming,
each a quintessentially "personal errand or activity" excluded
from coverage by the statute and Jumpp. 177 N.J. at 475. Nothing
in the statute indicates "off-premises employees are to be treated
differently from on-premises employees." Id. at 483.
It would not be consonant with the language or intent of the
1979 amendments to extend workers' compensation to cover employees
engaging in pre-work activities that will make them more refreshed,
efficient, alert, fragrant, or attractive during the work day,
such as bathing, eating breakfast, drinking coffee, exercising,
or dressing. Treating these pre-work activities as covered would
contravene the requirement that the employee "engaged in the direct
performance of duties assigned or directed by the employer."
N.J.S.A. 34:15-36. It would also ignore the "'clear legislative
mandate sharply curtailing compensability for off-premises
accidents.'" Jumpp, 177 N.J. at 482 (citation omitted).
Thus, had Kamenetti stayed in a motel or truck stop with a
shower, showered there, and injured himself while dressing, he
would be equally ineligible for compensation as an on-premises
10 A-0394-16T3
employee who slept, showered, and dressed at home. However, he
chose to stay at a "mom and pop" truck stop that had no showers,
and therefore had to go elsewhere to shower. His choice does not
change the result.
In Mangigian v. Franz Warner Assoc., Inc., 205 N.J. Super.
422 (App. Div. 1985), an off-premises employee was travelling
through New Jersey to survey stores for her employer; after she
returned to her motel and prepared reports, she walked to get food
and was struck by a car. Id. at 424. Despite the obvious
importance of food to sustain the employee, and its apparent
unavailability at her motel, we ruled she was engaged in "a purely
personal errand." Id. at 428. We opined: "the statute means
exactly what it says. In order to obtain compensation for an off-
premises accident, the employee must demonstrate that his injuries
were sustained in the 'direct performance of [the] duties assigned
[to him] or directed by the employer.'" Id. at 427 (alteration
in original) (quoting N.J.S.A. 34:15-36). We held the employee
"was properly denied compensation because she was not engaged in
the direct performance of [assigned] duties." Id. at 423.
In Jumpp, both we and the Supreme Court relied on Mangigian.
177 N.J. at 475, 481. Even though the off-premises employee had
to go out to get "supper," the Court agreed N.J.S.A. 34:15-36
"barred recovery because the activities were personal in nature
11 A-0394-16T3
and concerned neither 'duties assigned nor directed,' nor
'business authorized,' by the employer." Jumpp, 177 N.J. at 481-
82 (quoting Mangigian, 205 N.J. Super. at 427-28). The statute
similarly bars recovery for Kamenetti's shower, even though he had
to drive to get it.
In driving to get his shower, Kamenetti also drove Sangillo's
truck and its cargo toward their destination, but that did not
convert either his shower or his dressing afterwards into "the
direct performance of duties assigned or directed by the employer."
N.J.S.A. 34:15-36. Taking his morning shower remained "'a personal
errand or activity.'" Jumpp, 177 N.J. at 475 (citation omitted).
When he was driving the truck toward the destination, and fueling
the truck, he was "performing his or her prescribed job duties,"
but "at the time of the injury" he had stopped performing those
duties "'to pursue a purely personal activity.'" Jumpp, 177 N.J.
at 477, 482 (citation omitted).
The JWC noted that "Kamenetti did not pull into the Flying J
to have a drink at the bar or play recreational video games," and
that any injury during those activities would have been "clearly
personal to the driver, and therefore, not compensable." However,
Kamenetti's morning shower was equally personal to the driver and
his injury as a result was likewise not compensable.
12 A-0394-16T3
The JWC emphasized Kamenetti chose to take his shower at the
Flying J. The JWC found "[t]he very nature of the employment
dictates that the facilities offered by interstate truck stops be
used by interstate truckers." The JWC "believe[d] that owners of
interstate trucking companies are fully aware of the degree to
which both their trucks and their drivers are dependent on the
frequent and efficient use of truck stops to facilitate the
movement of the goods they are transporting." We do not dispute
the need to fuel and service such trucks at interstate truck stops.
But just as it would have been a personal activity if Kamenetti
had used the bar and video games also offered by such truck stops,
his use of the shower at the truck stop remained a personal
activity, and not a duty "assigned or directed by the employer."
N.J.S.A. 34:15-36.
The JWC ruled "Kamenetti's actions in this case were easily
foreseeable and in many ways directed by Sangillo Trucking, who
'the Court finds,' directed [him] to utilize the services of the
major interstate truck stops." The JWC cited Kamenetti's testimony
that Sangillo wanted its trucks to be parked for the night at
well-lit large truck stops with security cameras, and that Sangillo
preferred he buy his fuel at a Love's truck stop if one was
available, because Sangillo had a contract with Love's to receive
a discount on fuel. If a Love's was not available, then Sangillo
13 A-0394-16T3
wanted the truck driver to fuel at a Flying J or a few other
nationwide truck stop chains.
Accepting Sangillo directed Kamenetti to park and fuel the
truck at a large nationwide truck stop, Sangillo did not instruct
Kamenetti where or when to shower. Kamenetti testified he made
the choices when to stop for fuel "[b]ased on the truck needs or
my personal needs, if I needed a shower." He agreed "when you
decide to shower, when not to shower, those are your personal
choices along your trip." Regarding his stop to take his morning
shower at the Flying J, he admitted he was "not under orders to
pull into that truck stop." There was no evidence he was directed
to shower at the Flying J. See Chisholm-Cohen v. Cty. of Ocean,
231 N.J. Super. 348, 352 (App. Div. 1989) (finding an employee,
encouraged by her supervisor to drive a company vehicle home to
eat and change before an off-premises assignment, was not directed
to do so); cf. Sager, 182 N.J. at 163-68 (finding the employer
directed the employee to go get dinner and return to work).
Any argument Sangillo directed Kamenetti's choice to shower
is further weakened by the fact that he was not following
Sangillo's directions where to park or fuel. He chose to park for
the night not at a large truck stop with cameras as Sangillo
wanted, but at a "mom and pop" truck stop. He chose to fuel not
at a Love's as Sangillo preferred, but at a Flying J.
14 A-0394-16T3
The JWC also ruled that "[t]ruck driving by its very nature
is a very unique endeavor. There are very few types of employment
that demand an employee virtually reside in his or her place of
employment, namely the truck." The JWC found compelling
Kamenetti's testimony that he was responsible for the truck and
the cargo from the time he left Sangillo's yard in New Jersey
until he returned, including "[i]f a tire blows," "if I get into
an accident," if "there is an issue with the load," and even "[i]f
I get hit" when asleep while the truck was parked at the truck
stop. The JWC concluded "that the injuries sustained by Mr.
Kamenetti were distinctly associated with being an interstate
trucker and are therefore compensable."
However, Kamenetti was not in his truck when he was injured.
Nor was he dealing with a problem with the truck, such as a blown
tire, an accident, a load problem, or being hit while parked for
the night. He was taking his morning shower, not "performing his
. . . work responsibilities at the time of the injury," as Jumpp
and the statute require. 177 N.J. at 473.
Nothing in our statute suggests or permits the creation of a
special rule for truck drivers that converts personal activities
into work responsibilities. Our Legislature has limited
compensation for all off-premises employees to injuries which
occur "when the employee is engaged in the direct performance of
15 A-0394-16T3
duties assigned or directed by the employer." N.J.S.A. 34:15-36.
Kamenetti was required to meet that off-premises standard in order
to be eligible for workers' compensation. See Zelasko v.
Refrigerated Food Express, 128 N.J. 329, 339 (1992) (reversing the
grant of benefits to the driver of a tractor-trailer because,
"[a]lthough the employer had required that petitioner be off the
premises, . . . he was in no sense engaged in the "direct
performance of duties assigned or directed by the employer.").
IV.
The JWC cited cases under the "minor deviation" exception,
which Kamenetti also invokes. Before 1979, the minor deviation
rule was "broadly formulated." Jumpp, 177 N.J. at 479. "[D]uring
that period, the Court recognized that an on-premises employee
might not be 'actually working' at the time he or she was injured
but that in certain circumstances compensation nonetheless should
be available," such as if the employee stopped working "'to have
a smoke, or to get some fresh air, or to use the telephone, or to
satisfy other human needs incidental to his being at his place of
employment[, or] . . . . to satisfy their interest in a passing
parade or in a strange object or their curiosity generally.'" Id.
at 478-79 (quoting Secor v. Penn Serv. Garage, 19 N.J. 315, 321
(1955)).
16 A-0394-16T3
That broad rule "in effect considered personal habits or
errands, such as smoking or making a phone call, to be in the
'course of employment' even though, unlike the indispensable human
functions of eating and using the lavatory, employees need not
engage in such activities to perform their work duties adequately."
Id. at 479. It also resulted in compensation for injuries
occurring during "personal activities . . . off the employer's
premises, even though the injury was unconnected or only tenuously
related to the employee's job duties." Ibid. (citing, e.g.,
Hornyak v. Great Atl. & Pac. Tea Co., 63 N.J. 99, 102 (1973)
(allowing "compensation for injuries sustained during voluntary,
off-premises lunch breaks")). The JWC mistakenly cited the
broadly-formulated pre-1979 version of the minor deviation rule.
However, the Legislature in 1979 required the employee only
"be deemed to be in the course of employment when the employee is
engaged in the direct performance of duties assigned or directed
by the employer." N.J.S.A. 34:15-36. "Consonant with that
language, and aware of the Legislature's desire to limit the
availability of benefits for off-premises injuries, our courts
have since interpreted the statute to bar compensation for injuries
sustained in certain activities that prior to the 1979 amendments
were deemed within the scope of employment." Jumpp, 177 N.J. at
480-82 (describing Ward v. Davidowitz, 191 N.J. Super. 518 (App.
17 A-0394-16T3
Div. 1983), Mangigian, and Chisholm-Cohen). For example, we held
that "off-premises 'lunch break accidents' are no longer
compensable 'as a matter of law.'" Ibid. (quoting Ward, 191 N.J.
Super. at 524).
In Jumpp, our Supreme Court described and approved those
post-1979 cases, recognizing that their rationale "represents a
significant departure from our pre 1979 jurisprudence wherein the
minor deviation rule was applied broadly in off-premises cases."
Id. at 480-83. The Court made clear that though "the minor
deviation rule was [not] eliminated by the 1979 amendments," it
was given a narrow new formulation to ensure coverage for off-
premises employees would be no greater than the narrowed coverage
for on-premises employees. Id. at 483.
The Supreme Court held: "In cases involving an alleged minor
deviation, the question is . . . whether that employee has embarked
on a personal errand that would have been compensable if carried
out by an on-premises employee." Id. at 484.
Off-premises employees enjoy the same ability
to deal with certain basic needs enjoyed by
on-premises employees such as phone calls to
babysitters and physicians as well as coffee
and lunch breaks. Although the line is
difficult to draw, those minor deviations are
different in kind from shopping excursions
during lunch hour or a visit to a travel agent
to plan a vacation, even when the agent works
in the same building as the employee seeking
benefits.
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[Id. at 483.]
Addressing Jumpp's brief stop to check his mail while he was
on the road working, the Court ruled his "'deviation was no
different from the office worker who takes an afternoon break and
crosses the street to pick up his personal mail at the local post
office.' Neither deviation would be compensable." Id. at 484
(quoting Jumpp, 351 N.J. Super. at 52).
When Kamenetti left Sangillo's truck to go to take his morning
shower at the Flying J, he was engaged during the work day in a
personal errand normally occurring outside of working hours, like
"shopping excursions during lunch hour." Id. at 483. Kamenetti
spent approximately thirty minutes away from the truck taking his
morning shower and dressing. That was not comparable to "phone
calls to babysitters and physicians" - brief but necessary
interruptions that do not physically remove the employee from his
place of work. Ibid. It was also not comparable to "coffee and
lunch breaks," which by definition are breaks for food and drink
which must occur during the workday. Ibid. Rather, it was the
postponed performance of a pre-work personal activity.
Under the new, narrow formulation in Jumpp, Kamenetti's
showering was not a minor deviation because it "would [not] have
been compensable if carried out by an on-premises employee." Id.
19 A-0394-16T3
at 484. If an on-premises employee had started his work day
without showering, and later left the work premises and gone into
a nearby building to take his morning shower, any injury there
would not be compensable.
Kamenetti relies on a 1936 opinion in which a hotel dishwasher
finished his work and was injured after taking a shower in the
hotel washroom. Taylor v. 110 S. Penna. Ave. Corp., 117 N.J.L.
346, 346 (Sup. Ct. 1936). Taylor is distinguishable because the
dishwasher was "taking a shower bath on the premises of his
employer," because the work "cause[d] the accumulation of dirt and
perspiration" from which he was cleaning up, and because "[i]t was
customary for the employees to take the shower when leaving at
night and occasionally in the middle of the day, as cleanliness
was essential for their work in the kitchen." Id. at 346-47.1
Thus, the court in Taylor ruled showering on the premises was "a
natural incident of the employment." Id. at 347.2
1
Moreover, we have subsequently stated the dishwasher in Taylor
was "on call" for further kitchen duties. See, e.g., Brooks v.
Dee Realty Co., 72 N.J. Super. 499, 506 (App. Div. 1962).
2
By contrast, where an on-premises employee went to a company
event and returned to the work premises after his shift was over
to shower, we have held "[h]is decision to return to use the
employer's shower facilities was unrelated to his employment
duties and served his personal interests exclusively." Mule v.
N.J. Mfrs. Ins. Co., 356 N.J. Super. 389, 395-97 (App. Div. 2003).
20 A-0394-16T3
More fundamentally, the issue in Taylor was whether "cleaning
up, including the use of the shower, could fairly be said to be
an incident of the employment." Id. at 347. "[I]ncident of the
employment" is the standard for the "arising out of" portion of
N.J.S.A. 34:15-7's "arising out of and in the course of employment"
requirements. Coleman v. Cycle Transformer Corp., 105 N.J. 285,
289-90 (1986). "[T]he 'arising out of' portion [is] construed to
refer to causal origin, and the 'course of employment' portion to
the time, place, and circumstances of the accident in relation to
the employment." Id. at 288 (quoting 1 A. Larson, Workmen's
Compensation Law, § 6.10 (1985)) (Larson). "[E]ach test must be
'independently applied and met.'" Id. at 289 (quoting 1 Larson §
6.10(a)).
Here, we need not decide whether the "arising out of" test
was met, because Kamenetti failed to meet the "in the course of"
requirement. As he was not "engaged in the direct performance of
duties assigned or directed by the employer," N.J.S.A. 34:15-36,
we need not consider whether "the risk of the occurrence was
reasonably incident to the employment," Coleman, 105 N.J. at 290.
Similarly, in considering Kamenetti's claim this was
an alleged minor deviation, the question is
not whether the off-premises employee was
"satisfying a personal need, the completion
of which is neither incidental to his . . .
employment . . . nor beneficial to the
21 A-0394-16T3
employer," but rather, whether that employee
has embarked on a personal errand that would
have been compensable if carried out by an on-
premises employee.
[Jumpp, 177 N.J. at 484 (emphasis added)
(quoting Jumpp, 351 N.J. Super. at 52).].
The JWC also cited Cooper v. Barnickel Enters., 411 N.J.
Super. 343 (App. Div. 2010). In Cooper, when a company's plumbing
foreman went to the union hall to discuss a new job with a union
instructor, the instructor was busy, so the foreman took his coffee
break. As there was no coffee at the union hall, he drove to get
coffee elsewhere and was in an accident. Id. at 344-45. Cooper
noted that "'[o]ff-premises employees enjoy the same ability to
deal with certain basic needs enjoyed by on-premises employees
such as . . . coffee and lunch breaks." Id. at 347 (quoting Jumpp,
177 N.J. at 483). Because the foreman "was on "his authorized
'coffee break,'" Cooper ruled that "under Jumpp, accidents
occurring during coffee breaks for off-site employees, which are
equivalent to those of on-site workers, are minor deviations from
employment which permit recovery of workers' compensation
benefits." Id. at 348. Moreover, we stated it was appropriate
for the foreman to take his coffee break then because he was
"facing an extended wait to consult with an expert concerning a
work-related issue." Ibid.
22 A-0394-16T3
We find Cooper is inapposite.3 Unlike Cooper, Kamenetti was
not taking an authorized coffee break. Instead, he was shifting
into the work day a purely personal pre-work activity, his morning
shower. This was a personal errand, or activity, not a minor
deviation.
V.
The amicus curiae, COSH, attempts to justify compensation
under the "paid travel time," "employer-authorized vehicle,"
"special mission," "personal comfort," and "mutual benefit"
exceptions. However, COSH acknowledges those exceptions were not
argued before the JWC. New Jersey courts "do[] not consider
arguments that have not been asserted by a party, and are raised
for the first time by an amicus curiae." State v. J.R., 227 N.J.
393, 421 (2017). Thus, we "decline to address these issues because
they were not argued by the parties or considered by the trial
court and are therefore not properly before this [c]ourt."
Nicholas v. Mynster, 213 N.J. 463, 477 n.13 (2013).4
3
Thus, we need not consider if Cooper is consistent the 1979
amendments' intent "to remove from compensability . . . off-
premises injuries sustained during lunch hour." Jumpp, 177 N.J.
at 477 (quoting Napier at 18); see id. at 479-80.
4
In any event, "the Legislature laid to rest the mutual benefit
doctrine" in 1979. Sarzillo v. Turner Constr. Co., 101 N.J. 114,
119 (1985). Moreover, it is dubious the remaining exceptions
cited by COSH apply here, given the facts and law discussed above.
23 A-0394-16T3
VI.
We recognize the Workers' Compensation Act "'is humane social
legislation.'" Hersh, 217 N.J. at 243 (citations omitted).
Moreover, "we are mindful of the general rule that the Workers'
Compensation Act is to be liberally construed in favor of workers.
But we must remember that it is to be so construed in order to
effectuate the legislative purpose," including "the legislative
purpose in enacting N.J.S.A. 34:15-36." Saunderlin v. E.I. Du
Pont Co., 102 N.J. 402, 419 (1986). "'[W]e may not impute a
meaning to the statutory perimeters of employment contrary to the
plain language and intent of the [1979] legislation.'" Chisholm-
Cohen, 231 N.J. Super. at 350 (citation omitted).
Kamenetti failed to meet the more restrictive standard set
by the 1979 legislation. Therefore, "[t]o award disability
benefits in cases like these would flout the Legislature's attempt
to solve . . . through the 1979 amendments" the excessive costs
caused by over-broad compensation for off-premises injuries only
tenuously connected to the employee's job duties. See Saunderlin,
102 N.J. at 419-20; see also Jumpp, 177 N.J. at 476- 479.
See also Zelasko, 128 N.J. 336-39; Scott v. Foodarama Supermarkets,
398 N.J. Super. 441, 448-49 (App. Div. 2008); Walsh v. Ultimate
Corp., 231 N.J. Super. 383, 390-91 (App. Div. 1989). Indeed, when
Kamenetti cited an unpublished Texas decision involving a special
mission, the JWC remarked he did "not believe that the present
case is a special mission case."
24 A-0394-16T3
We are also aware that some other states provide coverage for
traveling employee's bathing and dressing injuries. 2 Larson §
25.04 (2018). However, bathing and dressing cases had caused
"[t]he greatest difficulty," and coverage has often been provided,
"not on the abstract merits of covering falls by traveling
employees in bath tubs, but solely on the issue of achieving
consistent treatment for classes of employees." Id. at 1-2. Our
Legislature and Jumpp have provided us with a clear and binding
standard that avoids such difficulties and that requires off-
premises employees personal activities not be covered if not
covered for on-premises employees.
Reversed and remanded. We do not retain jurisdiction.
25 A-0394-16T3