Opinion
DOCKET NO. A-2071-13T4
07-11-2014
ELENA FORD, Petitioner-Respondent, v. DURHAM D&M, LLC, Respondent-Appellant.
Kent & McBride, P.C., attorneys for appellant (Brenton C. Owens, on the brief). Manning, Caliendo & Thomson, P.A., attorneys for respondent (Kenneth L. Thomson, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Haas.
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Case No. 2012-26498.
Kent & McBride, P.C., attorneys for appellant (Brenton C. Owens, on the brief).
Manning, Caliendo & Thomson, P.A., attorneys for respondent (Kenneth L. Thomson, of counsel and on the brief). PER CURIAM
By leave granted, appellant Durham D&M, LLC (Durham) appeals from the November 8, 2013 order of the Division of Workers' Compensation, which found that an injury sustained by petitioner Elena Ford was compensable. We affirm.
We discern the following facts from the evidence adduced at trial. Petitioner, age seventy-three, worked as a school bus aide for Durham. In this position, she was responsible for assisting the children with their seatbelts, and ensuring that they behaved on the way to and from school. Durham paid petitioner "by the run" and she usually had five runs per day. Petitioner had a different bus driver for each of her runs. Petitioner testified that when the last child was dropped off, she had no further duties to perform. She was also not responsible for cleaning the bus at the end of the day.
Pursuant to the agreement of the parties, the trial was bifurcated by the workers' compensation judge, with the parties proceeding first on the issue of compensability. The remaining issue of permanency was not adjudicated.
Petitioner did not own a car. In the mornings, a bus driver who lived close to her would usually drive petitioner to the bus yard in her personal vehicle to begin her runs. At the end of the day, the bus driver for the last run of the afternoon would return the bus to the bus yard and drop petitioner off there. She would then get a ride home with another employee. However, petitioner made arrangements with her supervisor that, if she was assigned to one specific run that ended near her home in Keansburg, the bus driver could drop her off at home instead of driving her back to the bus yard.
On January 26, 2012, petitioner's last run was the one that ended near her home. As approved by the supervisor, the bus driver, Walter Downing, drove petitioner to her home after the last child exited the bus. Petitioner testified that Downing parked by the sidewalk and opened the bus door. Petitioner described what happened next as follows:
I start going down the step, and when I was getting towards the door to get off the last step of the bus, all of a sudden I just fell, completely fell onto the cement where the sidewalk is, and when I fell, my instinct told me to grab for the fence to pick myself up, like when you normally fall, to pick myself up, but the way I fell I went this way to grab for the fence.
Petitioner was hurt in the fall and called for Downing to help. She testified that the bus was "a few feet away" and Downing "came out of the bus" to assist her. An ambulance arrived and transported petitioner to the hospital. At the hospital, petitioner stated she was "in pain" and, therefore, her daughter provided the medical staff with whatever information they sought. The nurse's notes admitted in evidence provide differing accounts. A note entered at 4:54 p.m. on January 26, 2012, states: "[Patient] slipped and fell in the driveway at home." However, a 5:08 p.m. entry states: "[Patient] fell of[f] a school bus . . . ."
Because the trial was bifurcated, the parties did not introduce proofs concerning the nature and extent of petitioner's injuries.
Downing testified on behalf of Durham. He stated:
[Petitioner] stepped down off the bus, I closed the door and as I did, I look in the mirror, proceeding slowly, at about 30 feet away after looking in the mirrors again I noticed she had fallen. That's when I stopped the vehicle, took the key with me like you are supposed to do, and I went back and said what happened? She said she fell. I saw she had fallen.Downing did not "actually see" petitioner fall and he did not "know what caused her to fall[.]" Downing testified "[s]he was standing when I closed the door."
Downing prepared a written incident report after he returned to the bus yard. In pertinent part, this report stated: "Aide stepped off was standing when I pulled away. Apparently, she tripped on curb or sidewalk and fell. I noticed in mirror about 30 [feet] away she was down and stopped."
At the conclusion of the trial, the judge rendered a comprehensive oral decision, and found the incident of January 26, 2012, to be compensable. The judge later supplemented his oral decision with a written amplification of his findings of fact and conclusions of law pursuant to Rule 2:5-1(b).
With regard to the question of how the injuries sustained by petitioner occurred, the judge found that "[p]etitioner was injured while descending from a school bus, utilized in her employment[.]" The judge made detailed credibility findings in explaining his reasons for this determination. The judge found that petitioner's account was credible. In his written decision, the judge stated:
I determined that both the Petitioner and Mr. Downing, the bus driver, testified to the best of their ability and were honest as to their recollections of what happened. In determining that the fall was compensable, I relied in large part on the fact that I found [petitioner] to be entirely honest. Although there were minor vagaries in her testimony, I actually found that they enhanced her credibility. Her testimony came across as genuine and not rehearsed. She was very clear in her testimony that she fell while descending from the bus. In addition to listening to her, I observed her demeanor. I was fully satisfied that she was testifying honestly and not fabricating when testifying that she fell from the last step of the bus.
The judge thoroughly explained why he could not rely upon Downing's testimony of how the injury occurred or upon the incident report he prepared:
In regard to the testimony of Mr. Downing, the bus driver, I determined that he testified to the best of his recollection; however, he did not see the incident. He surmised what he felt happened. Although I referenced the foregoing in my decision, I wish to elaborate as to the same.
Mr. Downing prepared an incident report on the day of the incident which was marked as R-2 in Evidence. In the report, he notes, "Aide stepped off was standing when I pulled away. Apparently, she [tr]ipped on curb or sidewalk and fell." When testifying at trial, he indicated at pages 36 through 38, that he saw [petitioner] as standing on the sidewalk. If she was standing on the sidewalk, she clearly did not slip on the curb, as noted as a potential cause of the fall per Mr. Downing's written statement. Clearly, to be on the sidewalk, one already had mounted the curb.
In considering Mr. Downing's testimony, I in no respect thought he was fabricating as to such an inconsistency. He simply did not know what caused her to fall. He testified that he would not have driven away, if he had seen her fall off the last step. I believe him in that respect; however, my assessment of the testimony was that he did not realize she had fallen when she descended from the bus.
In conclusion, the judge found:
The bottom line is that I believed [petitioner] in her testimony that she fell while stepping from the bus. She is the only one who knows where and how she fell. I considered the evidence in great detail, including the Trial Briefs of the Attorneys, before rendering my decision. There were no eye witnesses. Beyond the testimony, the only other evidence was a hospital record, which at one point indicated that the fall took place in the driveway and at other points, that she fell off the bus. The hospital record is thus inconsistent and not particularly helpful.
The best evidence was the testimony of [petitioner], which I found credible, leading to my conclusion and decision.
The judge also rejected Durham's contention that, assuming petitioner fell as she was stepping off the bus, her injuries did not arise in the course of her employment, as defined by N.J.S.A. 34:15-36. Durham argued that, because the children were no longer on the bus, and petitioner was being driven home rather than to the bus yard, her work day had ended by the time she fell. The judge found this argument lacked merit and stated:
The most logical interpretation of N.J.S.A. 34:15-36 in this instance . . . is that petitioner's employment commenced when she arrived at the bus yard to start the day and would end when she returned there or to an otherwise authorized location. The fact that she was given permission to get off the bus at home as opposed to the bus yard does not detract from the fact that she had to get off the bus as an incident of employment.
The analogy of petitioner to leaving one's office is appropriate. The bus, in essence, is petitioner's office. There was no increased risk by the petitioner descending the bus step where she did as opposed to at the bus yard. In fact, in this case getting off at her home actually lessened the time [petitioner] was on the bus in that the location of her home was close to the last dropoff. She, thus, left the bus sooner than she would have if she went to the bus yard.
The judge found that the two cases principally relied upon by Durham in support of its contrary assertion, Jumpp v. City of Ventnor, 177 N.J. 470 (2003), and Chisholm-Cohen v. Cnty. of Ocean, 231 N.J. Super. 348 (App. Div. 1989), were distinguishable from the facts presented in this case. In Jumpp, the worker suffered an injury during the workday when he stopped at the post office to pick up his personal mail, in the course of traveling between designated work stations. Jumpp, supra, 177 N.J. at 473. In Chisholm-Cohen, the employee was injured when she drove home in an employer-owned car during her work day to change clothes. Chisholm-Cohen, supra, 231 N.J. Super. at 350. Both employees were found ineligible for compensation because neither sustained injuries during the course of employment.
Here, on the other hand, the judge explained:
The facts are distinguishable from Jumpp in that Mr. Jumpp in going to the post office to get his mail was performing an act outside his work duties. Similarly[,] in Chis[h]olm-Cohen[,] the petitioner was returning home for a personal break instead of staying at her place of employment. She was not required to do it. She elected to do it on her own.
In the instant case[, petitioner] had actually no choice but to descend from the bus. The only reason she was on the bus was to perform her job as a bus aide. To accept [Durham's] argument would mean that if [petitioner] was injured in the same fashion
descending the bus steps at the bus yard, the incident would not be compensable since she had no actual duties after the last child was let off the bus.
The judge continued:
A further example would be if the bus were in a motor vehicle accident after dropping the last child off when returning to the yard, that that would also not be compensable under [Durham's] argument in that it would not be in the course of employment. This position is not consistent with that portion of N.J.S.A. 34:15-36 which indicates employment begins when the employee arrives at work and terminates when the employee leaves.Thus, the judge found that the January 26, 2012 incident was compensable because it occurred during the course of petitioner's employment. This appeal followed.
Because the judge found the incident occurred during the course of petitioner's employment, the judge did not consider petitioner's alternate argument that, because she had arranged to be driven home in an employer-owned bus, the injury was compensable under the "ridesharing" provisions of N.J.S.A. 34:15-36.
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On appeal, Durham argues the judge's finding that petitioner fell while stepping off the bus is not supported by sufficient credible evidence in the record and asserts the judge erred in accepting petitioner's version of the incident. Durham also contends the incident did not occur during the course of petitioner's employment. We disagree.
"An employee is entitled to compensation for an accidental injury under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -142, if the injury 'ar[ose] out of and in the course of employment.'" Cooper v. Barnickel Enters., Inc. 411 N.J. Super. 343, 346 (App. Div.) (alteration in original) (quoting N.J.S.A. 34:15-7), certif. denied, 201 N.J. 443 (2010). The definition of "employment" under the Act 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, supra, 411 N.J. Super. at 346.
"The language of the [Act] must be liberally construed in favor of employees." Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 349 (App. Div. 1999). The Act "is remedial social legislation and should be given a liberal construction in order 'to implement the legislative policy of affording coverage to as many workers as possible.'" Auletta v. Bergen Ctr. for Child Dev., 338 N.J. Super. 464, 470 (App. Div.) (quoting Brower v. ICT Grp., 164 N.J. 367, 373 (2000)), certif. denied, 169 N.J. 611 (2001).
Our standard of review is well-settled. When reviewing the decision of a workers' compensation judge,
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. 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.
[Lindquist v. Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (internal citations and quotation marks omitted).]
Against this backdrop, and mindful of our standard of review, we affirm substantially for the reasons expressed by the judge in his well-reasoned oral decision and subsequent written amplification. Contrary to Durham's contentions, the judge's finding that petitioner fell getting off the bus, as opposed to after she reached the sidewalk, is amply supported by sufficient credible evidence in the record. We discern no basis for disturbing, and therefore defer to, the judge's detailed credibility findings, which were thoroughly explained in each of his decisions.
The judge also properly determined that petitioner's work day began when she arrived at the bus yard in the morning and ended when she exited the bus at night. Thus, the injury that occurred when petitioner was getting off the bus at her home occurred during the course of her employment and was, therefore, compensable.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION