Shaudys v. IMO Industries, Inc.

• Decision Date: 30 November 1995
• Parties: Henry R. SHAUDYS, Petitioner-Respondent, v. IMO INDUSTRIES, INC., Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 407

285 N.J.Super. 407

667 A.2d 204

Henry R. SHAUDYS, Petitioner-Respondent, v. IMO INDUSTRIES, INC., Respondent-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Oct. 25, 1995.

Decided Nov. 30, 1995.

Charles N. Martel, Cedar Knolls, for appellant (Robert W. Friedland, attorney, Mr. Martel on the brief).

Gary E. Adams, Princeton, for respondent (Pellettieri, Rabstein and Altman, attorneys, Mr. Adams on the brief).

Before Judges STERN, WALLACE and NEWMAN.

The opinion of the court was delivered by

NEWMAN, J.A.D.

Respondent IMO Industries, Inc. (IMO) appeals from a judgment awarding workers' compensation to its employee, petitioner Henry R. Shaudys. We affirm.

The facts are as follows. On March 22, 1993, petitioner arrived to report for work at IMO at about 7:30 a.m. He parked his car in the employee parking lot owned and maintained by IMO. He testified that he got out of his car and then, as he turned to walk towards his workplace and took a step with his left leg while slamming his car door shut, he twisted his left knee and heard something pop in that knee. He underwent arthroscopic surgery, and was unable to work for over fourteen weeks.

Petitioner filed a claim petition with the Division of Workers' Compensation. On September 28, 1994, a hearing was held before the judge of compensation. Petitioner was the only witness, the parties having agreed to submit the medical records and reports without presenting as witnesses the physicians who made them. Petitioner did not allege that any condition in the parking lot contributed to his injury. The compensation judge found that petitioner had torn the medial meniscus (cartilage between the femur and the tibia, Gordy-Gray, Attorney's Textbook of Medicine, vol. 1A, par. 7A.18 (1989)) in his left knee as a result of twisting while his leg was planted and that he also had a chondromalacia patellae (abnormal softness of the cartilage beneath the patella, Id. at par. 7.70 (1989)). The judge awarded worker's compensation to petitioner.

IMO appeals on the grounds that petitioner's injury did not "arise out of employment" under N.J.S.A. 34:15-7. It concedes however, that the injury occurred "in the course of employment." See, Livingstone v. Abraham & Straus, Inc., 111 N.J. 89, 543 A.2d 45 (1988). ¹

N.J.S.A. 34:15-7 provides that,

When employer and employee shall by agreement ... accept the provisions of this article[,] compensation for personal injuries to ... such employee by accident arising out of and in the course of employment shall be made by the employer without regard to the negligence of the employer, according to the schedule contained in the sections ... of this Title.... [Emphasis added.]

As for the meaning of "arising out of and in the course of employment," the Supreme Court has stated that "[t]he task of construction is made easier by breaking the phrase in half, with the 'arising out of' portion construed to refer to causal origin, and the 'course of employment' portion to refer to time, place, and circumstances of the accident in relation to the employment." Coleman v. Cycle Transformer Corp., 105 N.J. 285, 288, 520 A.2d 1341 (1986) (quoting from Dean Larson at 1 A. Larson, Workmen's Compensation Law, section 6.10 (1985)). The Court noted, however, that "even though each test must be independently applied and met, it should never be forgotten that the basic concept of compensation coverage is unitary, not dual, and is best expressed in the term 'work connection.' " Id. at 289, 520 A.2d 1341 (quoting Larson at section 6.10). The Supreme Court has also emphasized that the Workers' Compensation Act is remedial social legislation that should be liberally construed in order that its beneficent purposes may be accomplished. Fiore v. Consol. Freightways, 140 N.J. 452, 465, 659 A.2d 436 (1995); Torres v. Trenton Times Newspaper, 64 N.J. 458, 461, 317 A.2d 361 (1974).

IMO argues that the "arising out of employment" prong of the statutory test for compensation benefits was not satisfied. The Court in Coleman defined that leg of the test in the following terms [t]he accident, in order to arise 'out of' the employment, must be of such nature the risk of which might have been contemplated by a reasonable person when entering the employment, as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service.

[Ibid. (quoting Rafferty v. Dairymen's League Coop. Ass'n, 16 N.J.Misc. 363, 200 A. 493 (Dep't of Labor, Workmen's Comp. Bureau 1938).]

The Court also stated that "the 'but for' or positional-risk test is now a fixture in New Jersey law." Id. at 290, 520 A.2d 1341. Under the "but for" test, an injury "arises out of employment" if "it is more probable that the injury would not have occurred under the normal circumstances of everyday life outside the employment." Id. at 291, 520 A.2d 1341.

One of the components of the "but for" test is the nature of the risk that causes injury to the employee. Ibid. Our courts have established three categories of risks. The first category includes risks "distinctly associated" with the employment, which are compensable. Examples of such injuries are industrial injuries resulting from machinery. Ibid. The second category includes compensable "neutral" risks which do not originate in the employment environment but rather happen to befall the employee during the course of employment. Ibid. The typical examples of neutral risks are acts of God, such as lightning. Ibid.; See also Gargiulo v. Gargiulo, 13 N.J. 8, 13, 97 A.2d 593 (1953) (where employee was struck, while working in the back yard of his employer's store, by an arrow that a neighborhood boy had shot at a tree on the employer's property, workers' compensation was awarded because, "but for" his employment, the employee would not have been in the line of fire). The third category of risks includes those "personal" to the employee and are not compensable. In this category, the employment connection with the injury is minimal; it is the personal proclivities or contacts of the employee, not anything associated with the employment, that gives rise to the injury. Coleman, 105 N.J. at 292, 520 A.2d 1341. An epileptic seizure would be a classic example.

Coleman itself, relied on by IMO, involved an injury that fell into the "personal," non-compensable category. In Coleman, an employee suffered burns when her hair caught fire when, during her lunch break, she struck a match to light a cigarette and turned to talk to a co-worker. Id. at 287, 520 A.2d 1341. The Court held that her injury did not "arise out of employment" because

"[t]he fact that the accident happened while she was on her employer's premises was ... a coincidence. There is not the slightest suggestion that it is more probable that the accident would not have occurred under the normal circumstances of everyday life outside of the employment.... Quite simply, it was the [employee's] personal proclivity for smoking, coupled with an unfortunate bit of inattention, that produced the harm."

[Id. at 294-95, 520 A.2d

1341.]

In another relevant case, Spindler v. Universal Chain Corp., 11 N.J. 34, 93 A.2d 171 (1952), relied on by petitioner, the Court awarded workers' compensation to an employee who slipped and fell on the concrete floor of her workplace when she turned from her wire spooling machine to replace a wrench on the tool shelf behind her. The employer alleged that the employee had a physical ailment which caused her fall. The Court held that,

[i]f [her fall] was ... the result of a disease or physical seizure and was not contributed to by 'what the workman had to do,' it is not compensable. On the other hand, if the fall 'would not have occurred but for the services rendered' in the employment, it is covered by the statute.

[11 N.J. at 39-40, 93 A.2d

171.]

The Court concluded that the employer had not met its burden of proving its allegation that the fall was caused by a physical ailment and so found that the injury "was brought about by the employee's turning to replace the instrument she was using to the shelf located behind her, in furtherance of the purpose of her employment." 11 N.J. at 39, 93 A.2d 171. It therefore awarded workers' compensation benefits.

Petitioner also relies on a series of cases holding that injuries sustained in or near employer-provided parking lots "arose out of employment". In Buerkle v. United Parcel Service, 26 N.J.Super. 404, 98 A.2d 327 (App.Div.1953), compensation was granted where the employee slipped on ice in an employer-provided parking lot while leaving work. We held that the injury arose out of employment because the ice was an incidental risk of the employment. 26 N.J.Super. at 407, 98 A.2d 327. We noted that "an employee does not have to be actually engaged in work for the employer at the time of accident." Ibid. In Lewis v. Walter Scott & Co., Inc., 50 N.J.Super. 283, 141 A.2d 807 (App.Div.1958), compensation was granted where the employee slipped on ice on a public sidewalk leading from an employer-provided parking lot to the employer's building. In addition to finding that the injury occurred "in the course of" employment despite taking place on a public sidewalk, we held that the injury "arose out of" employment because the dangerous condition of the only passage from the lot to the workplace was a risk reasonably incidental to the employment. 50 N.J.Super. at 287, 141 A.2d 807. In Rice v. Pharmaceuticals, Inc., 65 N.J.Super. 579, 168 A.2d 201 (App.Div.1961), compensation was granted where the employee injured his foot upon accidentally striking it against a beam placed in the employer-provided parking lot by the employer to prevent cars from banging into the employer's building. In addressing the "arising out of" issue, we noted that "[t]he fact that the employee was not actually engaged in doing his job for his employer at the...