ANDREW MACKOFF VS. NEW BRUNSWICK SAW SERVICE (DIVISION OF WORKERS' COMPENSATION) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3625-19
ANDREW MACKOFF,
Petitioner-Appellant,
v.
NEW BRUNSWICK SAW
SERVICE,
Respondent-Respondent.
__________________________
Submitted March 3, 2021 – Decided July 14, 2021
Before Judges Ostrer and Enright.
On appeal from the New Jersey Department of Labor
and Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2018-34627.
Fuhrman & Edelman, attorneys for appellant (Ronald
B. Edelman, on the brief).
Ann Debellis, attorney for respondent (Kathleen L.
Burghardt, on the brief).
PER CURIAM
Petitioner Andrew Mackoff appeals from the May 5, 2020 dismissal of his
worker's compensation claim petition with prejudice and the denial of his motion
for medical and temporary disability benefits. We affirm.
Petitioner was employed by respondent New Brunswick Saw Services as
a salesperson and account manager. Respondent sells and services food
processing equipment and meat room equipment, such as band saws, mixers and
grinders. Petitioner worked mostly from home, but as part of his duties, he
traveled to his clients' businesses for meetings and service calls. He also met
with prospective clients in his assigned territories, which included New Jersey,
northern Delaware, parts of Pennsylvania, New York City, and southern
Connecticut. He worked approximately forty-five hours a week, including
weekends, but was not required to submit a daily schedule to his superiors.
On December 3, 2018, petitioner left his home in Blackwood for a 10:00
a.m. meeting with a client in West Caldwell. The meeting lasted roughly one
hour, following which petitioner decided he would visit a favorite hot dog place,
the Galloping Hill Inn in Kenilworth. He intended to head south and stop off at
his office in Middlesex after he ate lunch. On his way to the Galloping Hill Inn,
petitioner was involved in a car accident.
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Approximately three weeks later, petitioner filed an employee claim
petition for workers' compensation benefits under N.J.S.A. 34:15-7, alleging he
sustained compensable injuries to his head, neck and back during the accident.
Respondent acknowledged petitioner was its employee, but denied he sustained
a compensable injury that arose out of and in the course of his employment.
Subsequently, petitioner filed a motion for medical and temporary disability
benefits and respondent opposed same.
In June 2019, the parties appeared before Compensation Judge Ingrid L.
French for an evidentiary hearing. In describing the events that led up to his
December 3, 2018 accident, petitioner testified that once his meeting in West
Caldwell ended, he "didn't have anything pressing to do at that point." Because
he had not been to his office "in a while . . . [and] was up in the northern part of
the area, [he] figured at some point [he] would stop in the office." However, he
"was hungry" and "was going to get food first" before he drove south to his
office in Middlesex. He decided to go to the Galloping Hill Inn for lunch
because it "was like a nostalgia place" and he "had been going there forever."
Petitioner added, "my intention was to go to lunch at that point. So, I was
heading specifically to that hot dog place, which theoretically, I was going to a
prospect because they sell and serve . . . they have slicers, they sell sandwiches.
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So it's a . . . potential customer for me." On cross-examination, petitioner
acknowledged Galloping Hill Inn was never a customer and was located
approximately an hour away from his meeting in West Caldwell. Petitioner also
testified he had other customers in the area of the Galloping Hill Inn but had not
arranged to visit them after his meeting in West Caldwell.
On May 5, 2020, Judge French denied petitioner's motion for benefits and
dismissed his claim. She found petitioner failed to prove by a preponderance of
credible evidence he had a work-related accident, and thus failed to establish
compensability. The judge concluded petitioner was "en route to the hot dog
place in Kenilworth" when the motor vehicle accident occurred, but petitioner
did not intend to "prospect" the hot dog establishment. Instead, his "primary
purpose for driving to the hot dog place was personal and not work-related."
She noted petitioner
unequivocally testified that immediately following his
[West Caldwell] meeting . . . he was going to get his
lunch at the "hot dog place." Then, his attorney
prodded him to state that "theoretically," the "hot dog
place" was also a prospective customer. Specifically,
and in support of this "theory," the petitioner stated that
"any" food establishment that sells prepared food is a
potential customer.
The judge found "[p]etitioner's lack of conviction to the 'theory' of the hot
dog place being a potential customer was obvious to the [c]ourt." She added
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that not every place where petitioner might stop to eat was a "work-related
venture." Further, she concluded that although he had other customers in the
area, petitioner had no scheduled meetings or appointments near the hot dog
place. Finally, the judge determined,
[s]ince the petitioner's sole intention was to get his
lunch, the court does not find that the petitioner's
accident occurred out of or in the course of his
employment. The court concludes therefrom that the
petitioner had completed his work day and was on his
way to lunch when he was involved in a motor vehicle
accident.
The court hereby dismisses this claim for failure to
sustain the burden of proof as to compensability.
On appeal, petitioner presents the following contentions for our
consideration:
I. Petitioner Had Not Completed His Work Day When
He Was Involved In A Motor Vehicle Accident On His
Way To Lunch.
II. Petitioner's Going To The Hot Dog Restaurant For
Lunch Was No More Than A Minor Deviation In His
Work Schedule. (Issue not raised below).
We do not find these arguments convincing.
A petitioner bears the burden to establish the compensability of the claim
being made. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 279
(2003). Additionally, our review of workers' compensation cases is "limited to
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whether the findings made could have been reached on sufficient credible
evidence present in the record." Hersh v. Cty. of Morris, 217 N.J. 236, 243
(2014) (quoting Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164
(2004)). We give "substantial deference," Ramos v. M & F Fashions, Inc., 154
N.J. 583, 594 (1998), to the factual findings of a judge of compensation "in
recognition of the compensation judge's expertise and opportunity to hear
witnesses and assess their credibility." Goulding v. NJ Friendship House, Inc.,
245 N.J. 157, 167 (2021). However, we do not defer to a judge of
compensation's legal conclusions. Hersh, 217 N.J. at 243.
"An employee is entitled to compensation for an accidental injury under
the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, if the injury 'a[rose]
out of and in the course of employment.'" Cooper v. Barnickel Enters., Inc., 411
N.J. Super. 343, 346 (App. Div. 2010) (alteration in original) (quoting N.J.S.A.
34:15-7). The definition of "employment" under the statute is multi-faceted and
includes situations in which the employee is physically away from the
employer's premises, but nevertheless is "engaged in the direct performance of
duties assigned or directed by the employer." N.J.S.A. 34:15-36; see also
Cooper, 411 N.J. Super. at 346.
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The Supreme Court in Jumpp v. City of Ventnor, 177 N.J. 470, 482 (2003)
noted 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." (Internal quotation marks
omitted). Eligibility for benefits also has been found for employees who have
been injured in the course of a "minor deviation" from their duties. Id. at 484.
Here, petitioner admitted that to go from his meeting in West Caldwell to
the Galloping Hill Inn, he would have been heading east and the trip would have
been "about an hour ride." Moreover, he acknowledged that if he drove to
Galloping Hill Inn to "get a hot dog" and then went to his office it "would have
been about two hours out of [his] way" versus "going directly to [his] office"
from the site of his West Caldwell meeting. Further, he admitted Galloping Hill
Inn was never a customer and he did not have any appointments in the Union or
Kenilworth area with any of his potential customers. Considering petitioner's
testimony, we shall not disturb Judge French's finding that despite "his attorney's
attempt to bootstrap the purpose of the trip to the hot dog place into a
'generalized' work-related theory, the petitioner would not unequivocally state
that he intended to prospect the 'hot dog place.'" We also are satisfied Judge
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French adhered to the principles enunciated in Jumpp when she found
petitioner's "primary purpose for driving to the hot dog place was personal and
not work-related."
We need not address petitioner's second argument that his travel to the
Galloping Hill Inn was a "minor deviation," because this contention was not
raised before Judge French. See Selective Ins. Co. of Am. v. Rothman, 208 N.J.
580, 586 (2012); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973). Nonetheless, we note that in Jumpp, the Court acknowledged N.J.S.A.
34:15-36 expressed a "clear legislative mandate sharply curtailing
compensability for off-premises accidents." Jumpp, 177 N.J. at 482 (citations
omitted). It further determined that:
[i]n cases involving 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 employer, but rather, whether the
employee has embarked on a personal errand that would
have been compensable if carried out by an on-premises
employee.
[Id. at 484 (internal quotation marks and citations
omitted) (alteration in original).]
Here, we are persuaded that even if petitioner's intended ultimate
destination was his office in Middlesex, his detour to Kenilworth was not minor
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in nature. That is to say, much like the employee in Jumpp who was ineligible
for workers' compensation benefits for injuries sustained while returning from
his post office errand, petitioner's decision to travel an hour east from his West
Caldwell meeting because he was hungry and "going to get food first" was not
the sort of activity that "would have been compensable if carried out by an on -
premises employee." Ibid.To the extent we have not addressed any remaining arguments advanced
on appeal, we find them lacking sufficient merit to warrant discussion in this
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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