Administrative Supervising Judge of Compensation
Hunterdon Hills Plaza-1390 Route 22 West
Lebanon, New Jersey 08833
(908) 704-3011

DEPARTMENT OF LABOR

DIVISION OF WORKERS' COMPENSATION
Docket No. 96-026214

ARNOLD TRABB, Petitioner,

v.

HIRAM WALKER NEW YORK, INC, Respondent.

DECISION

Appearances:

Pellettieri, Rabstein & Altman by Deborah C. Gottuso, Esq., for the Petitioner,
Law Offices of Joan B. Sherman by Thomas E. Miller, Esq., for the Respondent.

This is the court's decision in Claim Petition 96-026214, Arnold Trabb v. Hiram Walker New York, Inc.

Arnold Trabb was employed by Hiram Walker selling and servicing On Premises Accounts, bars, hotels, night clubs. His regional market included all of New York State. He suffered an accident at the Sheraton Hotel in Saratoga, New York. The issue to be determined is whether this accident arose out of and in the course of his employment. Only two witnesses testified at the bifurcated hearing limited to the issue of compensability, Mr. Trabb and James L. Mingarelli, his boss. Neither witness was employed by Hiram Walker at the time of the hearing.

The petitioner maintained his only office at his residence in Belle Mead, New Jersey. This office contained a fax machine, a computer, a photocopy machine, file cabinets and two dedicated telephone lines. Trabb was furnished a company car. On July 30, 1995 Trabb traveled to Saratoga, New York for a "review meeting" with wholesalers in the New York market. Trabb testified that such meetings occurred about every six months and that he was required to attend. The respondent paid for travel, hotel and meals. Trabb went on to say that he arrived in Saratoga in the early afternoon, one or two p.m. and met with Russell Lehr, Paul Lafranchesky and James Mangerelli, his boss, at about five p.m. in the lobby of the Sheraton to go to dinner. According to petitioner he understood the purpose of the dinner was to review everything that was to be discussed at the conference and according to him, "we reviewed everything." "We discussed at the meeting things to plan in the budgets, the money we were going to spend for the wholesalers." At about 11 to 11:30 pm the entire group walked back to the hotel "to retire" said Trabb and while walking through the lobby James Mangerelli made a jocular "wrestling move" on him, fell on him and injured his left leg. Mangerelli helped him up and they went into the bar to "have a night cap to ease my pain".

James Mangerelli, who left the employ of Hiram Walker in December 1998, testified that the sales meeting began at 9:00 am and continued into the afternoon at which time the distributors left. He recalls that the group went to the track that afternoon, returned to the hotel, showered and went out to dinner - Trabb and four or more other people. They walked to dinner. After dinner they walked to an Irish Bar and then back to the hotel. According to this witness Trabb came up behind him in the lobby, hugged him in a fooling around manner, fell and Mangerelli fell on top of him. On cross examination Mangerelli testified that meetings such as the one at which this incident occurred were regularly scheduled and distributors entertained. Trabb was required to attend these meeting during the day. Mangerelli was not asked if any business was discussed during or after dinner.

Petitioner argues that:

1. his work day had not yet ended when the incident happened, and/or

2. he was on a "special mission" for his employer.

In support of the first thesis petitioner argues in his brief that he went into the bar for a "night cap" to check out the bar supply since Hiram Walker had this bar as an account. There is absolutely no evidence to support that contention. Petitioner's own testimony was that he had the "night cap to ease his pain".

The special mission exception to the going and coming rule allows compensation at any time for employees required to be away from the conventional place of employment and if actually engaged in the direct performance of employment duties.

Accepting the petitioner's testimony as true, that at dinner there was discussion and preparation for the next day's meeting, that discussion and preparation had ended at dinner. Therefore the petitioner was not engaged in the direct performance of employment duties when he and Mr. Mangerelli fell to the floor in the hotel lobby.

The petitioner has failed to sustain the burden of proof that his accident arose out of and in the course of employment. The claim petition is dismissed.

A stenographic fee to John F. Trainor, Inc. of $150.00 is assessed against the respondent.

February 12, 2000

_____________________________

Joan L. Mott

Administrative Supervising Judge of Compensation.