LUIS FONSECA VS. INTERTEK ALLSTATE INSURANCE CO., ETC. VS. INTERTEK(DIVISION OF WORKERS' COMPENSATION)

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4574-15T2
LUIS FONSECA,
Petitioner-Appellant/
Cross-Respondent,
v.
INTERTEK,
Respondent-Respondent.
_________________________________
ALLSTATE INSURANCE CO., A/S/O
LUIS FONSECA,
Petitioner-Respondent/
Cross-Appellant,
v.
INTERTEK,
Respondent.
Submitted May 17, 2017 – Decided June 20, 2017
Before Judges Carroll and Farrington.
On appeal from the New Jersey Department of
Labor and Workforce Development, Division of
Workers' Compensation, Claim Petition Nos.
2011-32820 and 2013-26473.
Kuchinsky and Rotunno, P.C., attorneys for
appellant/cross-respondent (Anthony M.
Rotunno, on the brief).
Biancamano & DiStefano, attorneys for
respondent Intertek (James G. Serritella, on
the brief).
McDermott & McGee, LLP, attorneys for
respondent/cross-appellant Allstate Insurance
Co. (Antony J. Verardi, on the brief).
PER CURIAM
Petitioner Luis Fonseca appeals the May 16, 2016 order of the
Division of Workers' Compensation that dismissed with prejudice
his claim petition against respondent Intertek, his employer. A
companion order dismissed a related claim petition filed by cross-
appellant, Allstate Insurance Company, which sought to recover
personal injury protection benefits it paid to Fonseca under an
automobile insurance policy. The Judge of Compensation (JWC)
determined that Fonseca's injuries did not arise out of or in the
course of his employment, and hence were not compensable. We
affirm.
Fonseca was employed by Intertek as a petroleum inspector.
He was injured in an automobile accident that occurred on September
24, 2011. He alleged that he took petroleum samples from a job
site, Hess Port Reading Terminal (Hess), to Intertek's laboratory
for analysis, and that the accident occurred while he was returning
to Hess to complete his job duties. Intertek disagreed, and
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instead maintained that Fonseca had concluded his work and was
leaving for the night and not returning to Hess as he had no reason
to do so.
The case was tried, as to compensability only, over four days
between July 13, 2015 and February 8, 2016. Fonseca, his former
co-worker Juan Garabito, and Edward Lauer, a dispatcher employed
by Intertek, testified at the hearing. In a thorough oral opinion,
the JWC found Fonseca's testimony that he was working at the time
of the motor vehicle accident was not credible because of
inconsistencies in his testimony at the hearing and in his pre-
hearing explanation of the accident. In reviewing the testimony,
the JWC identified certain instances when Fonseca was
"argumentative and defensive" and "evasive." The JWC likewise
"[did] not believe Garabito's testimony" and found it was
contradicted by information contained in a Movement Summary Report
introduced at trial that tracked Fonseca's activities.
The JWC found Lauer's testimony "more credible." The JWC
accepted Lauer's version of events, which she summarized as
follows:
I found [Lauer] to be a credible witness;
straightforward and businesslike. He
testified that before [Fonseca] left
[Intertek's] premises after dropping off the
samples, he did not tell him that he was
returning to Hess. He said that if [Fonseca]
was returning to Hess, he would have told him.
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After leaving [Intertek's] premises,
[Fonseca] called Lauer to tell him he was
involved in an accident around the corner from
[Intertek's] premises and Lauer picked him up
and brought him back to [Intertek's] premises
where he was picked up and taken home by a
friend. Lauer testified that even when he
picked up [Fonseca] at the scene, he did not
tell him that he was on his way back to Hess,
or that any further work had to be done that
night. Lauer further testified that if there
was anything that had to be done to complete
the work that night, that he would have been
contacted by someone from Hess. He said he
was not contacted. He said there was no need
for anyone to go back to Hess until the
following morning at 8 a.m. when the barge was
closed.
Based on the facts as she found them, the JWC determined that
petitioner's accident was not compensable because Fonseca's work
had concluded for the night and he was not returning to Hess. The
JWC also dismissed Allstate's claim petition "as there [was] no
reimbursement due." Fonseca's appeal and Allstate's cross-appeal
followed.
Our standard of review is well settled. As delineated by our
Supreme Court:
In workers' compensation cases, the scope of
appellate review is limited to "whether the
findings made could reasonably have been
reached on sufficient credible evidence
present in the record, considering the proofs
as a whole, with due regard to the opportunity
of the one who heard the witnesses to judge
of their credibility."
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[Lindquist v. City of Jersey City Fire Dep't,
175 N.J. 244, 262 (2003) (quoting Close v.
Kordulak Bros., 44 N.J. 589, 599 (1965)).]
"Deference must be accorded the factual findings and legal
determinations made by the Judge of Compensation unless they are
'manifestly unsupported by or inconsistent with competent relevant
and reasonably credible evidence as to offend the interests of
justice.'" Id. at 262-63 (quoting Perez v. Monmouth Cable Vision,
278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 104
N.J. 277 (1995)). "[T]he judge of compensation's legal findings
are not entitled to any deference and, thus, are reviewed de novo."
Hersh v. Cty. of Morris, 217 N.J. 236, 243 (2014) (citing Williams
v. A & L Packing & Storage, 314 N.J. Super. 460, 464 (App. Div.
1998)).
Only those employees injured in accidents "arising out of and
in the course of employment" are entitled to workers' compensation
benefits. Ibid. (quoting N.J.S.A. 34:15-7). N.J.S.A. 34:15-36
provides in pertinent part:
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
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direct performance of duties assigned or
directed by the employer[.]
[Ibid.]
Prior to 1979, the workers' compensation law had "broad
statutory language defining compensable accidents as those arising
out of and in the course of [the] employment." Watson v. Nassau
Inn, 74 N.J. 155, 158 (1977). The workers' compensation
jurisprudence at the time included the "going and coming rule," a
doctrine that prevented awarding workers' compensation benefits
for accidental injuries that occurred during routine travel to or
from the employee's place of work. Ibid. The purpose of the rule
was to separate work risks from ordinary risks unrelated to
employment. Id. at 159.
"However, there were many exceptions to the [going and coming]
rule, allowing for countless awards of workers' compensation
benefits[.]" Hersh, supra, 217 N.J. at 243. "As a result, in
1979, the Legislature amended the Workers' Compensation Act,
updating the definition of 'employment' [in N.J.S.A. 34:15-36] to
be more restrictive." Id. at 244; see also Jumpp v. City of
Ventnor, 177 N.J. 470, 476-79 (2003) (tracing jurisprudential
developments leading to 1979 adoption of Section 36).
Before us, Fonseca and Allstate (collectively, appellants)
do not challenge the JWC's credibility findings. Rather, they
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argue that the JWC failed to address the "on call" nature of
Fonseca's employment in determining the compensability of his
injuries. We are unpersuaded.
Appellants cite a trilogy of pre-amendment cases, Paige v.
City of Rahway, Water Department, 74 N.J. 177 (1977), Briggs v.
Am. Biltrite, 74 N.J. 185 (1977), and Sabat v. Fedders Corp., 75
N.J. 444 (1978), for the broad proposition that being "on-call"
means his injuries are compensable. However, the 1979 amendment
intended to limit compensation to accidents occurring "when the
employee is engaged in the direct performance of duties assigned
or directed by the employer[.]" N.J.S.A. 34:15-36. Moreover, to
the extent that the cases relied on by appellants have continued
vitality after the 1979 amendment, Fonseca's limited testimony on
redirect examination, that when he goes home he is "on call," does
not, "without more, establish entitlement to compensation as a
result of an accident." Sabat, supra, 75 N.J. at 451. Rather,
compensability in the pre-amendment context generally required a
"showing of frequent and substantial disruption of the off-duty
life of an employee whose continued availability is essential to
the operational efficiency of his employer's business[.]" Ibid.Fonseca made no such showing here.
Further, we agree with Intertek that Fonseca never
specifically asserted the "on call" argument before the JWC.
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Rather, Fonseca's contention was that he was returning to the Hess
work site, rather than going home, when the accident occurred.
Generally, we "'will decline to consider questions or issues not
properly presented to the trial court when an opportunity for such
a presentation is available' unless the matter involves the trial
court's jurisdiction or is of public importance[.]" Alloway v.
Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (quoting Nieder
v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); accord State
v. Robinson, 200 N.J. 1, 20 (2009) (reiterating the principle of
not considering an issue raised for the first time on appeal absent
an exception). No exception applies here.
Finally, Fonseca argues that the JWC erred in failing to
admit the collective bargaining agreement that purportedly
detailed the "on call" nature of his employment. The JWC excluded
the document because it was an unsigned copy and referenced an
individual other than Fonseca and, as such, it was not properly
authenticated.
We give substantial deference to the trial judge's discretion
on evidentiary rulings, Benevenga v. Digregorio, 325 N.J. Super.
27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), and
reverse only where the judge's ruling was "so wide of the mark
that a manifest denial of justice resulted." State v. Carter, 91
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N.J. 86, 106 (1982). Guided by this standard, we discern no abuse
of discretion that warrants reversal here.
Affirmed.
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