Domestic or Workplace Violence and How To Tell the Difference: Appellate Division’s Latest Analysis of New Jersey Workers’ Compensation Liability

By Robert J. Fitzgerald, Esq.*

In its most recent decision in Jennie Rosario v. State of New Jersey, 2016 N.J.Super. Unpub. LEXIS 165 (App. Div. Jan. 28, 2016), the Appellate Division has upheld personal animosity as a defense to compensability in a workers’ compensation case. The underlying facts of the case were not in dispute. The petitioner was an employee of DYFS, and on May 23, 2007, as she was leaving her office to get into a state-owned vehicle to perform her duties as a field case-worker, her ex-husband violently assaulted her.

The petitioner had recently been transferred from the Division’s East Orange office to its office in Maplewood. Just days earlier, she had been granted a judgment of divorce and a domestic violence final restraining order against her ex-husband. 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 the petitioner had been relocated to the Maplewood office.

Witnesses testified that the Division was aware of the threat of danger posed by the petitioner’s ex-husband based on her request to relocate. She highlighted the fact that her ex-husband had recently been 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. The petitioner also provided DYFS with a copy of the restraining order. The Division notified supervisors, security personnel, and receptionists at both the East Orange and Maplewood offices of the petitioner’s concerns, as well as the security guard at the Maplewood office. DYFS employees were instructed that anyone asking to meet with the petitioner had to be screened, and the petitioner was advised she could request an escort whenever she left the office.

The Workers’ Compensation Judge bifurcated the trial on the issue of compensability. Following the trial, the judge dismissed the claim petition, finding that, per Coleman v. Cycle Transformer, Corp., 520 A.2d 1341, 1343-1344 (N.J. 1986), there was no “causal connection between the employment and the injury.” More specifically, the petitioner’s injuries arose out of a “personal risk,” versus a risk from a work injury or a neutral risk. The judge emphasized the ex-husband’s testimony that he only went to see the petitioner in an effort to apologize and to see if the two could reconcile. At the time of the incident, he was not taking medications for his psychiatric condition and depression. The judge also determined the incident could have taken place anywhere and that the state did not have a duty to not disclose her location or a duty to protect her from her ex-husband’s attack.

In her appeal, the petitioner argued that her injuries were in the course and scope of her employment. In denying the appeal, the Appellate Division noted that the mere fact that a petitioner’s injuries are sustained at work does not satisfy the requirements of the Act for compensability. See Mule v. N.J. Mfrs. Ins. Co., 812 A.2d 1128, 1133-1134 (App. Div. 2003). The Appellate Division acknowledged that an intentional assault can be an “accident” for the purposes of workers’ compensation. See Cierpial v. Ford Motor Co., 109 A.2d 666, 668 (N.J. 1954). However, it emphasized that, if the attack arose out a personal relationship between the petitioner and the assailant, unrelated to her work environment, the injury could not be said to have arisen out of the employment. See Howard v. Harwood’s Rest. Co., 135 A.2d 161, 167-168 (N.J. 1957).

The Appellate Court also rejected the petitioner’s argument that DYFS’s alleged negligence had any impact on determining compensability:

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).

The issue of causal relationship has always been one of the most litigated issues in New Jersey workers’ compensation. While the facts in this case are tragic and unique, the court’s analysis of workers’ compensation liability remains the same. The burden of proof will always remain with the petitioner to show that the injuries are causally related to his or her work duties or work environment . However, injuries that are sustained due to a purely personal risk or condition of the petitioner are not compensable, even if the employer’s alleged negligent actions caused an increased level of personal risk. While workers’ compensation claims from assaults are, thankfully, rare, this case does reaffirm that these claims require a thorough investigation of the parties and the facts that lead to the violence. Otherwise, an employer or insurance carrier may end up unnecessarily paying benefits for a non-compensable claim.

*Bob is a shareholder in our Cherry Hill, New Jersey office. He can be reached at 856.414.6009 or rjfitzgerald@mdwcg.com.

_{Defense Digest, Vol. 22, No. 2, June 2016}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}