Opinion
DOCKET NO. A-4526-13T3
01-28-2016
JENNIE ROSARIO, Petitioner-Appellant, v. STATE OF NEW JERSEY, Respondent-Respondent.
Lombardi & Lombardi, P.A., attorneys for appellant (Joseph A. Lombardi, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Michael Pushko, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Rothstadt. On appeal from the Department of Labor, Division of Workers' Compensation, Claim Petition No. 2008-13429. Lombardi & Lombardi, P.A., attorneys for appellant (Joseph A. Lombardi, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Michael Pushko, Deputy Attorney General, on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Petitioner Jennie Rosario appeals from a workers' compensation court's final determination that injuries she sustained after being assaulted by her ex-husband in a parking lot at her place of employment were not compensable under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142 (the Act). At the time, petitioner was an employee of respondent, the State of New Jersey, working as a field case-worker for the agency then-known as the Division of Youth and Family Services (Division) in its Maplewood office. After a trial limited to the issue of compensability, the judge of compensation found the assault lacked any nexus to petitioner's employment, as it arose out of her relationship with her ex-husband, which was "of a completely personal nature."
A reorganization of the Department of Children and Families under L. 2012, c. 16, effective June 29, 2012, changed the name of the Division of Youth and Family Services to the Division of Child Protection and Permanency.
On appeal, petitioner argues that her attack "did arise out of and [occur] in the course of [her] employment," that the State was estopped from disputing the compensability of her injuries because of its position in a prior proceeding before this court, and that the judge of compensation's decision was "unsupported by or inconsistent with" the evidence at the trial. We disagree and affirm.
Petitioner had filed a tort action in the Law Division, which the court dismissed for failure to file a timely notice of claim. We affirmed. See Rosario v. Div. of Youth & Family Servs., A-3945-07 (App. Div. Mar. 11, 2009).
The judge of compensation presided over a trial at which petitioner and two of her co-workers testified, reviewed the videotaped deposition of petitioner's ex-husband, and the transcripts of the depositions of petitioner, her ex-husband, and three of her co-workers. After considering the evidence, the judge issued a comprehensive written decision, stating her findings and reasoning.
The judge's findings of fact can be summarized as follows. On May 23, 2007, while petitioner was leaving the Division's Maplewood office to get into a State-owned vehicle to perform her duties as a field case-worker, her ex-husband violently assaulted her with a knife. After the ex-husband "sliced" petitioner's head, a Division employee distracted the ex-husband, who then used the knife to stab himself. A State Human Services Police Officer and a Division supervisor responded to the scene within fifteen minutes.
At the time of the attack, petitioner had recently been transferred from the Division's East Orange office to its office in Maplewood and had been granted a judgment of divorce just days earlier. She also had a domestic violence final restraining order against her ex-husband, which was issued after he kidnapped and attempted to murder her mother. Though he had been in jail on these charges, he was released on bail the month before the attack, at which point he attempted to contact petitioner to apologize. Because he did not know where she lived, he contacted the Division's East Orange office to find her, and was informed by the receptionist that petitioner had been relocated to the Maplewood office.
According to the judge of compensation, the ex-husband pled guilty to first-degree kidnapping and second degree attempted murder. At the time of the hearing, he was serving a prison sentence.
Witnesses who testified at trial in deposition confirmed that the Division was aware of the threat of danger posed by petitioner's ex-husband. The Division's knowledge of the risk was derived from, among other sources, petitioner's May 10, 2007 request to relocate, in which she highlighted the fact that her ex-husband was released from prison and was making harassing calls to her, and that she was worried he would come to her office to "harass or injure" her. Petitioner also provided a supervisor with a copy of the restraining order. The Division notified supervisors, security personnel, and receptionists at both the East Orange and Maplewood offices of petitioner's concerns, and the security guard at the Maplewood office was instructed that anyone asking to meet with petitioner had to be screened. Petitioner was also told she could request an escort whenever she left the office.
Petitioner did not request an escort on the day of the attack.
After stating her findings, the judge cited to the Supreme Court's opinion in Coleman v. Cycle Transformer, Corp., 105 N.J. 285 (1986), regarding the risk assessment necessary to a determination of whether an injury is compensable as arising out of a petitioner's employment. The judge stated there are
three categories of risk. The first type of risk are those risks that are distinctly associated with work. The second category encompasses neutral risks, which arise from the uncontrollable circumstances which just happen to occur at work, whereas the third type of risks are personal risks, where the connection to work is minimal. Although the first two types of risks are compensable, the third risk is not compensable.Quoting Coleman, id. at 290-91, the judge explained that the focus must be on the "causal connection between the employment and the injury," and that, in order to be compensable, it must be proven that "it is more probably true than not that the injury would have occurred during the time [and] place of employment rather than elsewhere."
The judge also cited our opinion in Marky v. Dee Rose Furniture Co., 241 N.J. Super. 207 (App. Div.), certif. denied, 122 N.J. 359 (1990), as an illustration of how, under circumstances similar to petitioner's case, injuries sustained at an employer's location as a result of an assault by a former significant other are not compensable. She then rejected petitioner's reliance on the Court's earlier opinion in Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479 (1960), finding "there are no factual similarities" between the two cases.
Applying the Coleman analysis, the judge of compensation found that petitioner's injuries were not compensable because they arose out of a situation entirely unrelated to her employment. In support, the judge cited the ex-husband's testimony that he only went to see petitioner in an effort to apologize for his criminal behavior and to see if the two could reconcile, and that, at the time of the incident, he was not taking medications prescribed to "treat him for his psychiatric condition and depression." Moreover, the judge determined the incident could have taken place anywhere because the ex-husband initially tried to find petitioner by calling her cell phone, as he did not know where she was living, and only contacted her office after he decided it would be best to meet her in a public setting, which, the judge found, was not limited to her place of employment. The judge concluded by rejecting petitioner's argument that the State had a duty not to disclose her location after being given a copy of the restraining order or a duty to protect her from her ex-husband's attack, finding the contentions to be without any legal support.
The judge of compensation found in favor of the State and dismissed the petition with prejudice. This appeal followed.
In our review of workers' compensation courts' decisions, we generally give substantial deference to their determinations, limiting our review 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 . . . their credibility." 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 . . . unless . . . 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)). However, where, as here, "[i]t is the legal consequences flowing from those facts that form the basis of [the] appeal[, w]e owe no particular deference to the judge of compensation's interpretation of the law." Sexton v. Cty. of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 548 (App. Div. 2009); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Applying this standard, and based upon our careful review of the record and applicable legal principles, we affirm substantially for the reasons stated by the judge of compensation, whose decision we conclude was supported by sufficient credible evidence on the record as a whole. R. 2:11-3(e)(1)(D). We add only the following comments.
A petitioner bears the burden of establishing the compensability of their claim. See Lindquist, supra, 175 N.J. at 263; Perez, supra, 278 N.J. Super. at 282. In accordance with N.J.S.A. 34:15-7, a workers' compensation benefits award is to be made to an employee injured in an "accident arising out of and in the course of employment." However, the mere fact that a petitioner's injuries are sustained at work does not satisfy the requirements of the Act. See Mule v. N.J. Mfrs. Ins. Co., 356 N.J. Super. 389, 397 (App. Div. 2003) ("[T]o trigger coverage under workers' compensation there must be a causal connection between the accident and the employment. Situs alone is not enough."). "An accident arises 'in the course of' employment when it occurs (a) within the period of the employment and (b) at a place where the employee may reasonably be, and (c) while he is reasonably fulfilling the duties of the employment, or doing something incidental thereto." Crotty v. Driver Harris Co., 49 N.J. Super. 60, 69 (App. Div.), certif. denied, 27 N.J. 75 (1958).
An assault can be an "accident" even though it had a "willful or criminal nature," Cierpial v. Ford Motor Co., 16 N.J. 561, 566 (1954), but if the attack arises out a personal relationship, unrelated to work, "the injury cannot be said to arise out of the employment." Howard v. Harwood's Rest. Co., 25 N.J. 72, 84-85 (1957) (addressing an assault by one employee against another); see also Marky, supra, 241 N.J. Super. at 215 (rejecting claims arising from an assault that is based on "claimant's domestic or private life, and is not exacerbated by the employment" (quoting Velasquez v. Indus. Comm'n, 581 P.2d 748, 749 (Colo. App. 1978))).
In Marky, we held that an employee's assault by her ex-boyfriend, motived by her dining with a co-worker, was not compensable. We noted, however, that
[a] different result may have been reached . . . if, as part of her employment, petitioner was obliged to have dinner with [her co-worker] or to accompany him to places outside of the place of employment where they could be observed by her deranged former boyfriend. Thus it could be said that the relationship was fostered as a result of the employment.
[Marky, supra, 241 N.J. Super. at 215.]
We agree with the judge of compensation's conclusion that the attack in this case was related solely to petitioner's personal relationship with her attacker. Her job had nothing to do with why she was attacked, nor did her position "exacerbate" her problems with her ex-husband. See ibid.
Petitioner's claim that the Division's alleged negligence in allowing her location to be disclosed by a receptionist or in failing to provide adequate security to prevent the attack are not relevant to a proper consideration of her claim. Whether an employer actually commits a negligent act is irrelevant to determining compensability - the sole issue is whether the injury is work-related. See Estate of Kotsovska, ex rel. Kotsovska v. Liebman, 221 N.J. 568, 583-84 (2015) ("[T]he . . . Act provides employees who have sustained work-related injuries medical treatment and limited compensation 'without regard to the negligence of the employer.'" (quoting N.J.S.A. 34:15-7)). Accordingly, regardless of whether the Division committed a negligent act, liability would be imposed if petitioner's injuries arose out of her employment. See N.J.S.A. 34:15-7. Like the judge of compensation, however, we conclude they did not arise from her position with the Division.
To the extent we have not specifically addressed petitioner's remaining arguments, we find them to be without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION