Mackoff v. New Brunswick Saw Serv., No. A-3625-19 (App. Div. July 14, 2021)

The Appellate Court affirms dismissal of claim for plaintiff’s failure to demonstrate his injury was in the course and scope of his employment.

The Appellate Division affirmed a workers’ compensation decision to dismiss a claim petition with prejudice and deny the petitioner’s motion for benefits. The petitioner worked as a salesperson and account manager for the employer, who sold food processing equipment. He worked mostly from home, but he also traveled to current and prospective client businesses.

On December 3, 2018, the petitioner traveled to meet with a client in West Caldwell, New Jersey. After the hour-long meeting, he decided to visit a favorite restaurant in Kenilworth, New Jersey. After lunch, he intended to stop by his office in Middlesex. On his way to the restaurant, he was involved in a car accident. The petitioner filed a claim petition. The employer denied compensability, arguing the incident did not arise out of and in the course of employment. A motion for medical and temporary benefits was also filed.

The petitioner testified that he wanted to get lunch after his meeting and before heading to his office. He decided to go to the restaurant as it was his “intention…to go to lunch at that point.” He also noted the restaurant was “theoretically…a prospect because they sell and serve… So it’s a…potential customer for me.” However, on cross exam, he admitted the restaurant was never a customer, that it was an hour away from his meeting, and that he had no other visits with current customers nearby.

In denying the petitioner’s motion and dismissing the claim, the judge found the petitioner failed to prove he had a work-related accident by a preponderance of credible evidence. The judge pointed out that it was not the petitioner’s intention to visit the restaurant as a prospective customer but, rather, just for lunch. The judge noted the petitioner’s attorney “prodded” him to say the restaurant was theoretically a prospective client, but that the petitioner seemed to lack conviction in that statement himself. Furthermore, the judge determined the petitioner was not visiting any nearby current customers and, as such, his sole purpose was for personal reasons.

The petitioner appealed, arguing he had not completed his work day and that going to the restaurant was a minor deviation. In addressing the first issue, the Appellate Division cited Jumpp v. City of Ventnor, 177 N.J. 470 (2003), where the Supreme Court found that determining compensability for an employee who works away from his/her office should be based on whether the employee was performing job duties at time of the injury. Because the petitioner admitted that: (1) the restaurant was two hours out of his way from his office, rather than going directly to his office from the meeting location; (2) the restaurant was never a customer; and (3) he had no other appointments with customers, the Appellate Division declined to disturb the judge’s findings. 

As for the second argument, the Appellate Division noted this was never raised before the judge below, but briefly addressed by stating the petitioner’s detour to the restaurant was not minor due to his decision to travel an hour away for lunch.

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