Opinion
DOCKET NO. A-0539-13T4
09-23-2014
EUGENIE MARTIN, Petitioner-Appellant, v. VISITING ANGELS SOLUTONS, INC., Respondent-Respondent.
Edward I. Davis argued the cause for appellant (Joworisak & Associates, L.L.C., attorneys; Donald T. Joworisak, on the brief). Richard J. Williams, Jr., argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. Williams, of counsel and on the brief; Jill J. Pomeroy, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Kennedy and O'Connor. On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition 2010-2973. Edward I. Davis argued the cause for appellant (Joworisak & Associates, L.L.C., attorneys; Donald T. Joworisak, on the brief). Richard J. Williams, Jr., argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. Williams, of counsel and on the brief; Jill J. Pomeroy, on the brief). PER CURIAM
Eugenie Martin filed a petition with the Division of Workers' Compensation against her employer, Visiting Angels Solutions, Inc. (Visiting Angels), seeking workers' compensation benefits for an injury she suffered in a motor vehicle accident. Visiting Angels contested Martin's claim, arguing she was not in the course of her employment at the time of the accident. The Judge of Compensation conducted an evidentiary hearing to determine this threshold jurisdictional issue.
After considering Martin's testimony and the testimony of her employer Peter Broskie, the director and owner of Visiting Angels, the Judge of Compensation found Martin was not within the scope of her employment at the time of the accident, and dismissed her petition. This dispositive finding was substantially based on the Judge of Compensation's assessment of the witnesses' credibility.
Martin now appeals the order dismissing her petition, arguing the Judge of Compensation failed to provide a reasoned explanation to support his decision, and misapplied the "special mission" exception we discussed in Nemchick v. Thatcher Glass Manufacturing Co., 203 N.J. Super. 137, 141 (App. Div. 1985). After reviewing the record before us and mindful of our standard of review, we affirm.
I
Visiting Angels employed Martin as a home health care nurse, and assigned her to care for a disabled gentleman at his home in Marlboro. Broskie testified he assigned Martin to work a twelve hour shift, commencing at 9:00 p.m. and ending at 9:00 a.m. the following day, for a total of eighty-four hours per week. She was paid $7.92 per hour for the first forty hours, and $11.88 per hour as overtime pay for the remaining forty-four hours. This amounted to $12 0 per day. Her duties consisted of assisting the disabled gentleman in getting into bed at night, providing any assistance he may need throughout the night, assisting him in rising and showering in the morning, and helping him with his breakfast.
Both sides agreed that Martin was not a live-in nurse and that she kept her own residence in Piscataway. She also agreed with Broskie that Visiting Angels did not pay for her travel costs. Martin disputed, however, Broskie's description that her pay consisted of a combination of regular time and overtime rates. According to Martin, she was paid a flat rate of $120 for a twenty-four hour shift.
Martin testified that on the day of the accident, she left the gentleman's home at approximately 10:30 a.m. and traveled to Perth Amboy to investigate what type of commode would best suit his needs. Although the gentleman had his own commode at the time, Martin claimed it did not suit his needs. Once she found a suitable commode, she planned to return to the gentleman's home, pick up his wife, and return with his wife to Perth Amboy to purchase the commode. Martin also testified that she had gone the previous week to a facility in Monroe Township named "Clearbrook" to see if it had the right commode, but "they didn't have any."
The automobile accident occurred while driving to Perth Amboy to find a suitable commode. When asked by her attorney whether she advised her employer about the accident, Martin answered: "Well, I told [Broskie] that I could not come to work because I had an accident, and that was it." The record does not indicate where the accident occurred or how far Martin was from her assigned place of employment at the time of the accident.
Martin testified that she did not return to the gentleman's residence until a day after the accident. Broskie disputed this aspect of her testimony. According to records Broskie kept in the regular course of business, Martin did not take any time off from work related to the accident. Martin's testimony corroborated Broskie's account in this respect. She testified that she received her regular salary after the accident, without any deductions. She continued to work until "a couple of days" before she had surgery. Although not stated in the record, we presume the surgery was related to an injury she sustained in the accident. She did not return to work for Visiting Angels after the surgery.
Broskie testified that at the time of this accident Visiting Angels had approximately fifteen clients. Each employee's working hours were determined based on the needs of the individual client. As he explained, "[s]ome clients want three hours a day . . . [s]ome clients want someone there at night to make sure [when] they get up and go to the bathroom, they don't get hurt." When asked directly whether any employees "do any outsider [sic] errands for these clients such as shopping?" Broskie answered: "When they're on the job, yes." Thus, if the wife of the gentleman Martin cared for were to ask Martin "to pick up an item, she would be expected to [do] that; is that correct as a general rule?" Broskie answered: "If it was during her time that she was working, sure."
However, Broskie emphasized that clients typically purchase their own supplies through Medicare and Medicare delivers the supplies. The gentleman that Martin cared for in particular had a "working relationship" with a supply house and never requested Visiting Angels to pick up supplies.
II
On this record, the Judge of Compensation found Martin's testimony was not credible, characterizing her "version" of what transpired and the alleged work-related reasons for her traveling into Perth Amboy on the day of the accident as "self-serving." The Judge of Compensation specifically found Martin's trip into Perth Amboy was not in response to the client's immediate needs. The following excerpt from the Judge of Compensation's oral opinion captures the essence of his misgivings with respect to Martin's credibility:
If in fact she was going to the supply store, she's merely just going to see it. She wasn't actually going to go buy anything, and then furthermore when asked the name of the supply store she was going to go see, she said ["]I can't remember the name of the place,["] and it's awfully hard to have presented her case to be believable when certain really important facts don't seem to be recalled with regards to where and what she was going to buy, and even after the accident, she wasn't going to see it or never went back to see it afterwards. As a matter of fact, she returned to work, and there were no days lost after that, so that still further complicates my thoughts on this, and confirms that her burden hasn't been met because she never went back to the store after the accident to look at the commode or price the commode. These facts leave serious questions of credibility with regards to [Martin's] testimony.
III
N.J.S.A. 34:15-7 authorizes an award of workers' compensation benefits to an employee injured in an accident "arising out of and in the course of employment . . . ." As our Supreme Court has recently reaffirmed, "[a]ppellate review of workers' compensation cases is 'limited to whether the findings made could have been reached on sufficient credible evidence present in the record . . . with due regard also to the agency's expertise[.]'" Hersh v. Cnty. of Morris, 217 N.J. 236, 242 (2014) (quoting Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004)).
In Nemchick, supra, we adopted the following definition of the "special mission" common law doctrine, which is intended to bring certain nontraditional activities performed by the employee within the course of his or her employment:
When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.
[Nemchick, supra 203 N.J. Super. at 141 (internal citation omitted).]
Here, the Judge of Compensation gave a detailed explanation for his decision to reject Martin's account of events based on her lack of credibility. The Judge of Compensation simply did not believe that she was truly on a "special mission," as defined in Nemchick, to look for commodes on behalf of her client at the time she had this automobile accident. Specifically, the Judge of Compensation did not find any evidence that Martin's client urgently needed a new commode. She could not recall key details of this alleged special mission, and her employer categorically denied that this activity, which she engaged two hours after the end of her work-shift, was something that was expected or sanctioned by Visiting Angels.
As an appellate court, we are not at liberty to conduct a do novo review of the record. We are bound by the credibility findings made by the Judge of Compensation here because they are supported by the record and fall within his expertise in this area of administrative law. We affirm substantially for the reasons expressed by the Judge of Compensation in his oral opinion dated August 19, 2013. R. 2:11-3(e)(1)(D).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION