Mackoff v. New Brunswick Saw Service

• Decision Date: 14 July 2021
• Docket Number: A-3625-19
• Parties: ANDREW MACKOFF, Petitioner-Appellant, v. NEW BRUNSWICK SAW SERVICE, Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

ANDREW MACKOFF, Petitioner-Appellant, v. NEW BRUNSWICK SAW SERVICE, Respondent-Respondent.

No. A-3625-19

Superior Court of New Jersey, Appellate Division

July 14, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2021

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2018-34627.

Fuhrman &Edelman, attorneys for appellant (Ronald B Edelman, on the brief).

Ann Debellis, attorney for respondent (Kathleen L. Burghardt, on the brief).

Before Judges Ostrer and Enright.

PER CURIAM

Petitioner Andrew Mackoff appeals from the May 5, 2020 dismissal of his worker's compensation claim petition with prejudice and the denial of his motion for medical and temporary disability benefits. We affirm.

Petitioner was employed by respondent New Brunswick Saw Services as a salesperson and account manager. Respondent sells and services food processing equipment and meat room equipment such as band saws, mixers and grinders. Petitioner worked mostly from home, but as part of his duties, he traveled to his clients' businesses for meetings and service calls. He also met with prospective clients in his assigned territories, which included New Jersey, northern Delaware parts of Pennsylvania, New York City, and southern Connecticut. He worked approximately forty-five hours a week, including weekends, but was not required to submit a daily schedule to his superiors.

On December 3, 2018, petitioner left his home in Blackwood for a 10:00 a.m. meeting with a client in West Caldwell. The meeting lasted roughly one hour, following which petitioner decided he would visit a favorite hot dog place, the Galloping Hill Inn in Kenilworth. He intended to head south and stop off at his office in Middlesex after he ate lunch. On his way to the Galloping Hill Inn, petitioner was involved in a car accident.

Approximately three weeks later, petitioner filed an employee claim petition for workers' compensation benefits under N.J.S.A. 34: 15-7, alleging he sustained compensable injuries to his head, neck and back during the accident. Respondent acknowledged petitioner was its employee, but denied he sustained a compensable injury that arose out of and in the course of his employment. Subsequently, petitioner filed a motion for medical and temporary disability benefits and respondent opposed same.

In June 2019, the parties appeared before Compensation Judge Ingrid L. French for an evidentiary hearing. In describing the events that led up to his December 3, 2018 accident, petitioner testified that once his meeting in West Caldwell ended, he "didn't have anything pressing to do at that point. "Because he had not been to his office "in a while . . . [and] was up in the northern part of the area, [he] figured at some point [he] would stop in the office." However, he "was hungry" and "was going to get food first" before he drove south to his office in Middlesex. He decided to go to the Galloping Hill Inn for lunch because it "was like a nostalgia place" and he "had been going there forever." Petitioner added, "my intention was to go to lunch at that point. So, I was heading specifically to that hot dog place, which theoretically, I was going to a prospect because they sell and serve . . . they have slicers, they sell sandwiches. So it's a . . . potential customer for me." On cross-examination, petitioner acknowledged Galloping Hill Inn was never a customer and was located approximately an hour away from his meeting in West Caldwell. Petitioner also testified he had other customers in the area of the Galloping Hill Inn but had not arranged to visit them after his meeting in West Caldwell.

On May 5, 2020, Judge French denied petitioner's motion for benefits and dismissed his claim. She found petitioner failed to prove by a preponderance of credible evidence he had a work-related accident, and thus failed to establish compensability. The judge concluded petitioner was "en route to the hot dog place in Kenilworth" when the motor vehicle accident occurred, but petitioner did not intend to "prospect" the hot dog establishment. Instead, his "primary purpose for driving to the hot dog place was personal and not work-related." She noted petitioner

unequivocally testified that immediately following his [West Caldwell] meeting . . . he was going to get his lunch at the "hot dog place." Then, his attorney prodded him to state that "theoretically," the "hot dog place" was also a prospective customer. Specifically, and in support of this "theory," the petitioner stated that "any" food establishment that sells prepared food is a potential customer.

The judge found "[p]etitioner's lack of conviction to the 'theory' of the hot dog place being a potential customer was obvious to the [c]ourt." She added that not every place where petitioner might stop to eat was a "work-related venture." Further, she concluded that although he had other customers in the area, petitioner had no scheduled meetings or appointments near the hot dog place. Finally, the judge determined,

[s]ince the petitioner's sole intention was to get his lunch, the court does not find that the petitioner's accident occurred out of or in the course of his employment. The court concludes therefrom that the petitioner had completed his work day and was on his way to lunch when he was involved in a motor vehicle accident.

The court hereby dismisses this claim for failure to sustain the burden of proof as to compensability.

On appeal, petitioner presents the following contentions for our consideration:

I. Petitioner Had Not Completed His Work Day When He Was Involved In A Motor Vehicle Accident On His Way To Lunch.

II. Petitioner's Going To The Hot Dog Restaurant For Lunch Was No More Than A Minor Deviation In His Work Schedule. (Issue not raised below).

We do not find these arguments convincing.

A petitioner bears the burden to establish the compensability of the claim being made. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 279 (2003). Additionally, our review of workers' compensation cases is "limited to whether the findings made could have been reached on sufficient credible evidence present in the record." Hersh v. Cty. of Morris, 217 N.J. 236, 243 (2014) (quoting Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004)). We give "substantial deference," Ramos v. M &F Fashions, Inc., 154 N.J. 583, 594 (1998), to the factual findings of a judge of compensation "in recognition of the compensation judge's expertise and opportunity to hear witnesses and assess their credibility." Goulding v. N.J. Friendship House, Inc., 245 N.J. 157, 167 (2021). However, we do not defer to a judge of compensation's legal conclusions. Hersh, 217 N.J. at 243.

"An employee is entitled to...