Terhune v. Port Auth. of N.Y. & N.J., No. A-3206-22 (May 8, 2024)

Appellate Division finds that compulsion in an activity could render it a non-social or recreational activity.

The petitioner had worked for the respondent since 2007. On December 14, 2013, he reported for mandatory snow duty and as  a result, he had to stay at the assigned Marriott Hotel for 12 hours and work the other 12 hours. He was compensated for the entire 24-hour shift. The petitioner had a pre-existing back injury, requiring light exercise. After using the hotel gym, he slipped and landed on his back as he was entering the pool. The incident was reported, and the petitioner was taken to the hospital.

The respondent denied the claim petition filed by the petitioner on January 5, 2014, arguing the accident did not arise out of his employment. In a bifurcated trial, the judge of compensation found the petitioner’s testimony credible. The judge found the petitioner was at the Marriott as required by his employer, transported there by his employer, and the employer paid all expenses. The judge noted the order to stay at the hotel constituted a special mission and, as such, he was in the course of employment. The second part of the trial was for the nature and the extent of permanent disability. Subsequently, the judge entered a final decision and judgment for 75% permanent disability.

The respondent appealed the final workers’ compensation decision, arguing the petitioner was not on a special mission as he was not in direct performance of his job when the accident occurred. After reviewing the statute and relevant case law, the Appellate Division found the petitioner was required to be at the Marriott and was transported there by his employer, with the employer paying for all expenses. Although the respondent argued the petitioner was engaging in a recreational activity, the Appellate Division rejected same, noting this was not raised below and, further, there was no need to address this fact as there was sufficient evidence to support the petitioner was in the course of his employment. Finally, the Appellate Division indicated there was a prior case in which compulsion in an activity could render it a non-social or recreational activity. 


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