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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6083-07T36083-07T3
JOHN J. WALSH,
Petitioner-Respondent,
v.
PRINCETON 130 SUPPLY
CORPORATION,
Respondent-Appellant.
Submitted June 1, 2009 - Decided
Before Judges Sabatino and Simonelli.
On appeal from the New Jersey Department of Labor and Workforce Development,
Division of Workers' Compensation.
The Law Offices of Michael C. Urciuoli, attorneys for appellant (Jurij W. Ratych, on the
brief).
Golden, Rothschild, Spagnola, Lundell, Levitt & Boylan, attorneys for respondent
(Robert N. Golden, on the brief).
PER CURIAM
This is an appeal by an employer, Princeton 130 Supply Corporation ("Princeton 130"), of a final decision of the
Division of Workers' Compensation (the "Division") awarding petitioner, John J. Walsh ("Walsh"), disability payments
and other benefits. The Division's award followed a trial at which the compensation judge ruled that Walsh had
severely injured himself on a Sunday morning while he was acting in the scope of his employment on the
company's premises. On appeal, the employer contests the compensation judge's scope-of-employment
determination and the corresponding award of benefits. We affirm.
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Princeton 130 is a janitorial supply company located in Rocky Hill. The company is owned by John Astrab, who is
also its president. In or about April 2007, Astrab hired Walsh to work for Princeton 130 as a driver. Initially, Walsh
began as a part-time employee, working approximately thirty-two hours per week. According to the trial testimony,
both Walsh and the other driver employed by the company had substantial flexibility in developing their own work
schedules. The two drivers were responsible for delivering janitorial supplies, such as paper towels, toilet tissue, and
garbage liners, to customers of Princeton 130 in New York and New Jersey.
Eventually, Walsh began to work full-time for the company, typically on a Monday-through-Friday schedule. Walsh
customarily would arrive at the company's building at approximately 5:30 a.m. and leave when his work was
finished, usually between 12:30 p.m. and 2:30 p.m. Walsh was paid $17.50 per hour. On more than a dozen
occasions prior to the subject accident, Walsh would perform work at the company's building on the weekend.
However, despite those periodic weekend labors, Walsh was compensated by Princeton 130 only for the hours that
he worked on weekdays. Astrab provided Walsh with a key to the company's building, which enabled Walsh to
enter the premises at times when the company's offices were closed.
Early on Sunday morning, January 13, 2008, Walsh went to the company's premises. According to his
testimony, Walsh had gone there in order to "get a sense of how many" customer orders the company had received
since the time he left work the preceding Friday, so as to prepare for the upcoming week of deliveries.
After arriving at the building at approximately 4:30 a.m., Walsh flicked on the lights and proceeded up the
stairs to the company's offices on the second floor. Upon reaching the first landing of the steps, Walsh tripped. He
struck his head on the "first or second step" of the stairs leading away from the first landing. As a result, Walsh
began to bleed and could not move his muscles. Walsh remained prone on the landing for approximately an hour-
and-a-half until the company's other driver discovered him there. Emergency personnel were immediately called.
Once the emergency personnel responded, Walsh was transported by ambulance to Princeton Airport. He was then
taken by helicopter to Robert Wood Johnson Hospital. At the hospital, Walsh received emergency surgery to his
neck.
Following his surgery and hospitalization, Walsh was transferred to the Kessler Institute, an in-patient facility,
where his rehabilitation continued. Thereafter, Walsh had out-patient rehabilitation at a center in Hillsborough. As
of the time of trial, Walsh was still receiving physical therapy three to four times each week. Although he recovered
the ability to move most of his extremities, Walsh continued to have restrictions in his right shoulder and his right
side. As a result of these injuries, Walsh has been unable to return to work.
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Following his workplace accident, Walsh filed a compensation petition with the Division. Thereafter, he
received temporary disability from the State, subject to a lien on any recovery obtained in the present case against
Princeton 130, his former employer.
On March 10, 2008, Walsh filed a motion with the Division for medical treatment and temporary disability
benefits. His claims were tried before the compensation court over three intermittent days in the spring and
summer of 2008.
On the first day of trial, Walsh testified and described the type of work that he was responsible for
performing at Princeton 130. Those tasks included loading and unloading the company truck and making deliveries.
On a typical day, Walsh would arrive at the company's building in Rocky Hill and load his truck with deliveries for
that day. Walsh explained that he sometimes would come to the building on Sundays because doing so would
allow him to be prepared in advance of his Monday deliveries.
Walsh acknowledged that Astrab, the company's owner, never specifically directed him to come in on a
Sunday. Walsh also conceded that he did not tell Astrab about his preparatory efforts that he would undertake at
the office on such Sundays. Despite the lack of formal communications with his employer about those Sunday
endeavors, Walsh considered his presence at the office on weekends beneficial to the company:
. . . I think it made me more efficient in terms of getting [the work performed on
Sundays] my route organized and planned for the next morning, and if necessary,
depending on the number of orders, to actually have my van loaded so I could leave . . .
in time enough to make all the deliveries that day.
Walsh explained that his on-site preparations on Sundays meshed with his employer's business goals:
One of our, our marketing promises, if you will, was that we could provide next-day
delivery so our customers were pretty used to sending an order in on a Monday
expecting it on a Tuesday.
I'm sure [the customers] expected an order that was sent Friday afternoon or over the
weekend would be delivered Monday morning or Monday.
In his own testimony, Astrab described the nature of the firm's business and the tasks performed by the company's
drivers. Astrab also described the work hours generally kept by Walsh and the other driver. Astrab confirmed that he
had never requested either driver to come in on weekends.
With respect to the weekend in question, Astrab recalled a conversation that he had with Walsh on Friday,
January 11, 2008. According to Astrab, he told Walsh that the upcoming Monday, January 14, would be "slow" and
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that Walsh could take that Monday off if he wanted. Astrab further recalled that Monday, January 14, did, in fact,
turn out to be a "slow" day, and that only eleven deliveries were made, a small amount even for one driver.
On cross-examination, Astrab admitted that he had left the scheduling of deliveries to his drivers' discretion.
Moreover, Astrab confirmed that it was typical for both drivers to leave early on Friday afternoons. Astrab had no
explanation for why the other driver (the one who had found Walsh paralyzed on the stairwell) would have been at
the office on a Sunday morning.
On the third day of trial, Walsh was recalled to provide additional testimony. Walsh stated that he had no
recollection of Astrab telling him in advance that Monday, January 14, was going to be a slow delivery day. He also
could not recall being told by Astrab that he could take that particular Monday off.
After considering these proofs, the compensation judge made several pertinent findings. Among other things, the
judge found that Astrab was not involved in the scheduling of the driver's deliveries. He also found that Astrab had
promised his customers "next-day" delivery. In addition, the judge found that Astrab's testimony reflected that the
"bottom line" for him was that the "job got done and it got done right."
Relying upon Ramos v. M & F Fashions, 154 N.J. 583 (1998), the judge concluded that Walsh was entitled to
benefits because he was in the course of employment at the time of his fall on the company's stairs and that his
injuries arose out of work activities. In particular, the judge noted in this regard that Walsh "came in on his own time
over the weekend to prepare orders so that the job could get done and the company's promise of delivering next-
day delivery in a timely fashion would be met." Princeton 130 requested a stay of that determination, which was
denied.
A written order confirming the compensation judge's oral decision was issued on July 30, 2008. The order
specifically directed Princeton 130 to "commence temporary disability benefits [for Walsh] at the rate of $485.10 per
week, from January 13, 2008 to the present, and continuing until [Walsh] reaches maximum medical benefit." The
order also specified that the State of New Jersey was to be reimbursed its lien in the amount of $7,237.58. The order
further directed Princeton 130 to assume responsibility for Walsh's ongoing medical treatment, any outstanding
health care lien, and any other medical bills relating to the accident that were unpaid.
Princeton 130 now appeals, essentially contending that the compensation judge erred in concluding that
Walsh's accident had occurred in the course of employment and that it had arisen out of the parties' employment
relationship. Essentially for the reasons set forth in the court's oral opinion of the compensation judge, Hon. J.
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Michael Blake, J.W.C., we affirm the compensation court's determination.
To be entitled to compensation under the Workers' Compensation Act, N.J.S.A. §§ 34:15-1 to -142 (the "Act"),
a claimant bears the burden of proving by a preponderance of the evidence, see Akef v. BASF Corp., 305 N.J. Super.
333, 340 (App. Div. 1997), that his or her injuries, "[arose] out of and in the course of employment [and were] due in
a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade,
occupation, process, or place of employment." 364 N.J. Super. 333, 339 (App. Div. 2003). First, a claimant must show
a time-and-place nexus between his or her employment and the accident. See Coleman v. Cycle Transformer Corp.,
105 N.J. 285, 289 (1986). Second, a claimant must demonstrate a causal connection between the employment and
the accident itself. Ibid.
In adjudicating such issues, courts must bear in mind that the language of the Workers' Compensation Act is
to be liberally construed in favor of employees. Cannuscio v. Claridge Hotel, 319 N.J. Super. 342, 349 (App. Div.
1999). We have frequently recognized that the Act is remedial social legislation, and that its "beneficent purposes"
should be accomplished whenever appropriate. Zahner, supra, 321 N.J. Super. at 477 (citations omitted).
On appeal, we must accord substantial deference to the compensation judge's findings. Our task is simply to
examine "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." Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004) (quoting Close v.
Kordulak Bros., 44 N.J. 589, 599 (1965)). In doing so, we give due regard to the Division's expertise in the field of
worker's compensation. Ibid.
As to the first prong of the workplace nexus test, we consider whether Walsh's accident occurred "in the
course of employment." See 105 N.J. 285 (1986), the Court held that an employee who suffered burns to her hair
while smoking a cigarette at work satisfied the scope-of-employment test. Likewise, in Zahner v. Pathmark Stores,
Inc., 321 N.J. Super. 471 (App. Div. 1999), we ruled that a woman who was injured while shopping in her employer's
supermarket, even after her shift ended, sufficiently established that her injury had occurred in the course of
employment. See also N.G. v. State, Div. of Youth and Family Services, 300 N.J. Super. 594 (App. Div. 1997), (holding
that a DYFS worker who had been raped early in the morning hours during a DYFS-mandated twenty-four-hour
shift was still in the course of employment).
Here, as Judge Blake reasonably found, Walsh adequately met his burden of showing that his injuries
occurred within the scope of his employment with Princeton 130. The company's owner, Astrab, admitted that his
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company's two drivers essentially made their own schedules, with the only caveat being that the work "gets done."
Astrab also admitted that, to his knowledge, Walsh had never utilized company supplies or materials for his
personal use.
Significantly, Astrab conceded that he had no basis to believe that Walsh was at the office on Sunday,
January 13, for any other reason than to work. This was buttressed by Walsh's own testimony, indicating that it was
customary for him to leave the office early on Fridays and at times come in on the weekend to ensure that
Monday's shipments were properly accounted for and loaded on his truck. The presence of the other driver on the
premises that Sunday morning further corroborates the bona fides of Walsh's account of why he was there. In sum,
the first prong of the nexus test was amply demonstrated.
We now turn to the second prong: whether Walsh's injury "arose" from risks associated with the employment
relationship. See Coleman, supra, 105 N.J. at 290. A "but-for" causal connection between the injury and the type of
employment at issue must be established by the employee. Howard v. Harwood's Restaurant Co., 25 N.J. 72, 84
(1957). Although for purposes of compensation, "[a]n employee does not have to be actually engaged in work for
the employer at the time of an accident" for the requisite showing that the disability has arisen out of the
employment, Buerkle v. United Parcel Serv., 26 N.J. Super. 404, 407-08 (App. Div. 1953), the injury must "issue from
or be contributed to by conditions which bear some essential relation to the work or its nature." Williams v. Western
Elec. Co., 178 N.J. Super. 571, 585 (App. Div. 1981). An injury arises out of the employment if "it is more probable
that the injury would not have occurred under the normal circumstances of everyday life outside of the
employment." Coleman, supra, 105 N.J. at 291; see also Howard, supra, 25 N.J. at 82-83.
There is ample evidence that the injuries that Walsh sustained in the company's stairwell arose out of risks
associated with his work for Princeton 130. His accident did not result from a wholly personal activity, such as
checking his private e-mail account on office computers or using the company's photocopier for personal
documents. The proofs in this case strongly establish that Walsh was at his employer's premises on Sunday morning
with the sole purpose of ensuring that new orders would be filled and loaded on his truck, so that those orders
would be delivered the next day with expediency. Such expediency promoted the company's credo to its
customers; that next-day deliveries would be guaranteed.
Walsh, and by Astrab's own admission, his employer, mutually benefited from the unpaid weekend hours
that Walsh devoted at his workplace. The compensation judge had ample grounds to conclude that Walsh's injuries
had arisen out of his employment and were thus compensable. The judge's determination was legally sound and
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supported by substantial credible evidence in the record. Close, supra, 44 N.J. at 599.
Affirmed.
0x01 graphic
The other driver is referenced only once in the record and identified as "John Tarrion (phonetic)." Because the
correct spelling of Tarrion's last name is uncertain, we shall refer to him in this opinion as "the other driver."
Princeton 130 does not contest on this appeal the extent of Walsh's injuries and their causal connection to the
January 13, 2007 accident.
(continued)
(continued)
14
A-6083-07T3
June 23, 2009
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