CP# 99-1482 McAlpin v. Emiliani Enterprises, Inc.
ALBERT G. KROLL
June 26, 2002
Robert A. Olkowitz, Esq.
Lora U. Campbell, Esq.
re: McAlpin v. Emiliani Enterprises, Inc. - C.P. 99-001482
This case is before me for a resolution of respondent's motions seeking the dismissal of the claim petition (i) on the grounds that petitioner's alleged injury did not arise in and out of the course of her employment, and (ii) for lack of prosecution. In support of the latter motion I note the fact that petitioner failed to attend two (2) examinations with Dr. Scasta, M.D., the respondent's prospective medical expert.
Petitioner alleges that she suffered emotional and related psychiatric injury as a direct result of having been sexually assaulted by Mr. Troy Dougherty, an employee of the respondent, while both parties were in Ohio and engaged in the representation of respondent's business interests. The respondent, as well as Mr. Dougherty, deny the allegation(s).
Following the filing of the initial pleadings in this matter the petitioner filed a Motion for medical and related benefits, alleging that petitioner has been unable to work since the date of the alleged assault and was in need of medical treatment for depression and anxiety causally related to such incident. Respondent denied such relief. The petitioner and Mr. Dougherty have testified. I note that the respondent did not produce Mr. Dougherty, notwithstanding the fact that he was still employed by the respondent, until more than 18 months after the petitioner had testified.
During both May and October 2001, the respondent sought to have petitioner examined by Dr. Scasta, a psychiatrist. It appears that petitioner failed to attend the first of these
examinations for personal reasons relating at least in part to her emotional and/or related mental conditions, including major depression as diagnosed by Dr. Rankl, M.D. Based on the representation made by Mr. Olkowitz, which have not been challenged by respondent's counsel, Ms. Campbell, it appears that the reason that petitioner did not attend the examination scheduled for October 2001 is that prior to such date she was admitted to the Carrier Clinic for treatment of her mental condition. Petitioner's counsel has advised the court that under the terms of her admission to such clinic his client was not allowed to leave that facility until the completion of her course of treatment. I find the above facts present a reasonable basis for petitioner being unable to attend the examination scheduled for October 2001.
In addition, Mr. Olkowitz advised his adversary that he wished to produce lay witnesses, then in respondent's employ, whose testimony he believed would be pertinent to the factual issue(s) underlying petitioner's claim. Respondent's counsel did not provide him with the addresses of such parties and advised Mr. Olkowitz that it did not believe further testimony was appropriate until the court had acted on respondent's motion to dismiss for failure to attend Dr. Scasta's examinations.
Given the above procedural history and the reason for petitioner's not attending Dr. Scasta's examination scheduled for October 2001, I deny respondent's Motion to Dismiss based on lack of prosecution.
Respondent also argues that the subject claim should be dismissed at this time for failure to meet the provisions of N.J.S.A. 34:15-7 which require that to be compensable under the Statute the alleged injury/condition must arise both "out of" and "in" the course of the claimant's employment. In addition, respondent contends that the alleged sexual attack does not meet the terms of N.J.S.A. 34:15-36 because it neither (i) occurred on the respondent's place of employment, nor (ii) falls within the purview of a recognized exception thereto.
Though not titled as such, respondent's motion is equivalent to a Motion for Summary Judgment since it seeks a determination prior to trial based on the record presented to date.
Considered as such it must be resolved on the basis that petitioner's factual allegations are as stated. Respondent's brief accepts this concept, but argues that notwithstanding such fact petitioner has not presented evidence or other proof that the alleged sexual assault arose out of or in the course of petitioner's employment and, in addition, occurred at a location which was under the respondent's control.
Based on the record before me I find that the relationship that existed between the petitioner and Mr. Dougherty prior to the incident in question was solely of a business nature. I reject respondent's argument that the injury alleged by the petitioner arose from an act which was purely personal and disassociated from her employment with respondent. I find that petitioner was acting in the course and scope of her employment when she was directed to travel to Ohio with Mr. Dougherty and other employees of the respondent for a business meeting. Her hotel accommodations were arranged by the respondent and in the course of the trip she was required to participate in various meetings or other functions relating to her employment. If one accepts the petitioner's account of what occurred after she went to her room at or shortly after midnight on the first evening of that trip (see T. 8/9/99, pp. 23-29, incl.), as well as the fact that petitioner and Mr. Dougherty had not known each other prior to the petitioner's employment with respondent and that there was not any existing personal relationship between such parties, then the "but-for" test, which has been widely accepted by our courts in determining the issue of compensability, appears compelling on the issue before me. The latter is a "positional" test and I find that but for the petitioner's presence on the Ohio business trip, required by respondent, the incident that is the basis of this claim would never have happened at the time and on the date in question. Further, the above testimony of petitioner as to the alleged sexual assault, which I accept for the purposes of this motion, clearly precludes any finding that this incident was resulted from actions of a "purely personal" nature and/or that it was unrelated to her employment with respondent. See Coleman v. Cycle Transformer Corp., 105 N.J. 285, 291 (1986); Howard v. Hardwood's Restaurant Co., 25 N.J. 72, 84 (1957), each of which quote Dean Larson in presenting the far ranging scope of employment-related incidents which are subject to workmen's compensation coverage, 1 Larson, Workmen's Compensation Law, Sec 6.10 (1985).
I also reject respondent's argument that petitioner's injury is not compensable because it
did not arise on premises that were under its control. To begin with the New Jersey Workers' Compensation Act has traditionally been viewed as remedial legislation which is to be liberally construed. Prettyman v. New Jersey, 298 N. J. Super. 580, (App. Div. 1997); Jersey City v. Boast, 90 N.J.L. 454, 456 (1917); see also Torres v Trenton Times Newspaper, 64 N.J. 458, 461 (1974). In addition Section 36 specifically provides that where the employee is required by his/her employer to be away from the employer's place of employment the employee shall be "deemed to be in the course of employment" when engaged in the "direct performance of duties assigned or directed" by the employer. Petitioner has testified that on the business trip in question Mr. Dougherty was "in charge" of those employees, including the petitioner, that respondent had sent to the Ohio meeting. I find no interruption or termination of petitioner's employment activities in the course of her actions on the first day and evening of her trip to Ohio. She interacted with her co-employees under the direction and in the presence of Mr. Dougherty, who was the senior member of her group, until they each went to their respective hotel rooms. That interaction and her business related activities continued the following day after the alleged assault.
Considering petitioner's interest in keeping her position with respondent, which the Appellate Division has accepted as a valid basis for finding compensability where injury arises from an activity "suggested" by an employer or its representative, I find that while petitioner may have been ill-advised to permit Mr. Dougherty to enter her hotel room after leaving her co-employees on the first night of their Ohio trip, she certainly did nothing that was contrary to the interests of her employer and continued, in my view, to act within the scope of her employment in seeking to have Mr. Dougherty leave her room without creating a disturbance.
I note in this regard that the petitioner did not invite Mr. Dougherty to her room; rather her testimony is that he entered her room against her wishes. Unfortunately, it appears from her testimony that she lost control of the situation in which she found herself and which resulted in the alleged sexual assault which is the basis of the subject claim petition. Inasmuch as I find that petitioner would have a compensable claim if she can meet the required evidentiary standard with respect to her claim for permanent injury, I will deny respondent's motion to dismiss based on failure to meet the provisions of N.J.S.A. 34:15-7.
Given the time that has elapsed since the filing of the claim petition in this matter I would urge counsel to schedule such medical examinations and lay testimony as they desire as soon as practicable. I also bring their attention to the fact that I will be retiring shortly and if the matter is not resolved prior to such event I would anticipate that the testimony of the principals will have to be repeated before a different judge.
Respondent shall pay a stenographic fee of $ 200 to J. Trainor, Inc.
Neale F. Hooley
Judge of Compensation
 See Kehoe v. HBC Electric, Case A-3375 97T2 (App. Div. 1998), affirming J. Moncher's decision in C.P. 97-12496 (11/6/97).
 On the applicable evidentiary standard, s e e Ciuba v.Irvington Varnish & Insul. Co.,
27 N.J. 127 (1958). I also note the Appellate Division decision in Doe v. St. Michael's Med. Ctr., Newark, 184 N.J. 1, 7 (App. Div. 1982) which found a similar sexual assault to result in a compensable injury.
JAMES E. McGREEVEY