On December 8, 2021, in an unpublished decision, the Appellate Division of the Superior Court affirmed the decision of the Workers’ Compensation Judge (WCJ) finding that the petitioner’s injuries sustained during cardiovascular exercise on premises did not “arise out of her employment” and dismissed the claim.
The petitioner in this case was employed as a school nurse by the respondent, Hoboken Board of Education. The petitioner was assigned to the elementary school where she also worked in the after-school care program as a swimming instructor to earn extra income. She was on maternity leave from May 2019 through September 2019. Upon her return, petitioner desired to earn extra income. As a result, she reached out to inquire about working with the A.M. Care Program for students who needed to arrive at school between 7:30 a.m. and 8:15 a.m. Teachers and staff who did so received a stipend of $30.00 per day.
The petitioner began the position on September 10th and testified that she did not have specific instructions regarding her job duties but was simply stationed to monitor the hallway. On the second day, September 11th, the petitioner arrived early with the intention of participating in the A.M. Care. She was greeted by the principal who was dressed in workout clothes. The principal invited the petitioner to participate in the school’s Cardio Club where students, parents, and staff engage in cardiovascular exercises in the gym next to the cafeteria. The petitioner allegedly responded that she was not prepared to work out that morning but was going to the morning care program. The principal advised her, “Well, it’s up to you.”
The petitioner testified that as a new subordinate under this principal, she felt that she should follow “his directive” and after remembering that she had gym clothes in her car, she changed out of her professional clothes, changed into the gym clothes, and reported for the Cardio Club as the principal had instructed her to do. The petitioner testified that the principal did not advise her that she would not be paid for attending the Cardio Club or that it was any different from her duties in A.M. Care. While participating in the Cardio Club, the petitioner was pulling a car tire in a relay race and fell backwards. She sustained significant injuries to her lumbar spine requiring surgery.
The matter was tried with respect to the issue of course and scope of employment. The petitioner testified that she would not have participated in the Cardio Club if she knew she was not going to be paid since the only reason she took the A.M. Care job was so she could earn extra income. The petitioner testified that she was under the impression that she was instructed to participate in activities including the Cardio Club which she thought was part of the A.M. Care.
The petitioner admitted on cross-examination that six weeks after giving birth her physician encouraged her to return to exercise. The petitioner was interested in exercising and had done so prior to becoming pregnant. She participated in a weight loss challenge to lose 30 pounds by Christmas of 2019 for a cash prize. She did agree that her goal was to maintain a healthy lifestyle and to set a good example for the children.
The principal testified that he was greeting students outside the Cardio Club before it began. He saw the petitioner wearing workout clothing. He asked the petitioner if she could attend the Cardio Club and that the school had enough staff to support the morning care and that she could attend the workout if she would like to. The principal testified that he told the petitioner she would not be paid if she participated in the Cardio Club rather than proceeding to A.M. Care. The principal testified that about 5 of the 45 staff members attended the Cardio Club.
Interestingly, the petitioner had a fellow teacher testify in support of her claim; however, the teacher was more supportive of the position of the respondent/employer. She testified that she felt that the Cardio Club was completely voluntary and separate from her employment and the A.M. staffing needs. She testified she never heard of any staff being fired, demoted, or reprimanded for not participating in the Cardio Club.
Following the submission of the fact witness testimony, the WCJ dismissed the petitioner’s claim finding that the injuries did not arise out of or during the course of employment. On appeal, the Appellate Division affirmed the Judge’s findings. In doing so, the Court focused on N.J.S.A. 34:15-7, which provides that when “recreational or social activities” are the natural and proximate cause of the injuries, they are not compensable, “unless such recreational or social activities are a regular incident of employment and produce a benefit to the employer beyond improvement in employee health and morale…” However, rather than rely on section 7 to dismiss the claim, the Court concluded that the activity being engaged was not covered by section 7 since it was not a recreational or social event.
The Appellate Division noted that the petitioner’s voluntary participation in the Cardio Club was not a “regular incident of employment” as required by Section 7. It was also noted that this participation was not part of her job duties as the school nurse. Unlike the recent decision in Goulding v. N.J. Friendship House, 245 N.J. 157, 167 (2021), the school nurse duties were completely distinct from the activities she was participating in at the time she was injured. In Goulding, the petitioner was a cook during the course of the work week and also performed her duties as a cook on a Saturday “Family Fun Day” when she was injured. The Appellate Division was particularly impressed by the fact that the petitioner was not performing her job duties as a nurse when she was injured in contrast to the petitioner in Goulding who was performing her regular job duties when she was injured at an event that did benefit the employer’s clients and thus furthered the employer’s business interest by participating.
The Appellate Court concluded that the petitioner’s injuries did not arise out of her employment and were not compensable. At the time of her injuries, the petitioner was not performing her job duties as a school nurse and was also not monitoring, supervising, or instructing any students with respect to either cardiovascular exercise or the mathematical concepts that were discussed in connection with cardiovascular exercise. Ultimately, the WCJ and the Appellate Division did agree that the petitioner’s injuries were sustained as the result of her participation in voluntary physical exercise.
COMMENT: In a rather confusing interpretation of the statute, the Appellate Division did not support the dismissal of the claim by virtue of Section 7 of the statute finding that the petitioner was participating in a voluntary social or recreational event. Rather, they focused on the fact that the petitioner’s injuries were sustained in a voluntary decision to exercise while on the employer’s premises and did not arise out of nor during the course of her employment. While the Court did not specifically state this, it is clear that they were concluding that the petitioner’s injuries arose out of a personal or idiopathic risk: the decision to exercise, which had nothing to do with a risk associated with her job as either the school nurse on an A.M. Care monitor. This case also highlights the fact that on site injuries while exercising are not compensable without evidence of furthering the employer’s business interests or under compulsion. The credibility call between the petitioner’s version of the events and those presented by her employer were obviously key to the dismissal of the claim.
Chief Marketing and Business Development Officer