Monday, March 31, 2003

BEFORE:

                                                 HONORABLE ROBERT F. BUTLER
                                                Judge of Compensation

APPEARANCES:

                                                 ANTHONY P. MARCOZZI, JR., ESQ.
                                                            210 Haddon Avenue
                                                            Westmont, New Jersey 08108
                                                Attorney for the Petitioner

                                                EDWARD H. KEIPER, ESQ.
                                                By:       SANDRA E. CELONA, ESQ.
                                                            4350 Haddonfield Road
                                                            Pennsauken, New Jersey 08109
                                                Attorney for the Respondent

CHRISTINE RHOADES
Certified Shorthand Reporter

THE COURT: This is the return day with respect to the trial of Claim Petition Number 99-039478 in which the petitioner is Andrea Wilson and the respondent is Rite Aid Corporation.

            Would you note your appearances.

MR. MARCOZZI:       Good morning, your Honor.  Anthony Marcozzi on behalf of the petitioner, Andrea Wilson.

MS. CELONA:            Sandra Celona appearing on behalf of respondent.

THE COURT:              Counsel, we had concluded this matter with the presentation of briefs three weeks ago.  I indicated that I would be prepared to render my decision from the bench this morning, and that is what I will do now.

This court has but one issue to decide in this case, and that issue is whether or not the petitioner’s “accident” arose out of and in the course of her employment with the respondent. 

Based upon the proofs presented at trial, I make the following findings of fact:  The petitioner, Andrea Wilson, was first employed by the respondent, Rite Aid Corporation, as a pharmacy technician in August 1998.  Prior to her accepting that job, the petitioner had been dating a Deon Davis for approximately ten years.  Mr. Davis was the father of Petitioner’s child who was ten years of age as of the date of her testimony.  Davis’s attitude and relationship toward the petitioner for quite sometime prior to her alleged work-related accident of September 25, 1998 can best be described as confrontational and on several occasions violent. 

The petitioner testified and I find that she had been attacked and beaten by Davis on several occasions.  These attacks resulted in her obtaining medical treatment at the Salem County Memorial Hospital at least a few times.  These attacks had occurred because she had told him that she did not wish to see him anymore.  She had filed criminal charges against him on at least five occasions.

Davis had broken windows at the petitioner’s mother’s apartment where the petitioner lived on at least three occasions.  He had even assaulted her at his own mother’s home.  Prior to September 25, 1998, petitioner had obtained “a few” restraining orders against Davis because of his assaults and threats of violence.  She had ended this relationship three to four months before her September 25, 1998 alleged work-related accident because she did not wish to be with him anymore.

Davis had also threatened the petitioner at the respondent’s pharmacy while she was working during the two months preceding her alleged accident.  He had been to the pharmacy at least three times during that period.  He had been told to leave the store by the assistant manager, and at one point the respondent’s security guard, David Barr, had been instructed to keep him out of the store.

I find that the petitioner’s regular working hours with the respondent were 1:00 P.M. to 9:00 P.M.  During the morning of September 25, 1998, the petitioner had been in court and had once again obtained a temporary restraining order against Davis.  She had arrived at work thereafter at 3:00 P.M.  Within one-half hour, the petitioner began receiving repeated threatening calls from Davis and on each occasion she immediately ended the call by hanging up the phone.  She then called the police and told them Davis had threatened her.

Shortly thereafter she saw Davis through the drive-thru window as he was walking toward the store.  She again called the police.  Again, within moments, the petitioner saw Davis walking toward her down one of the aisles of the store.  He kicked open the half-door entrance to the pharmacy.  He then attacked and stabbed the petitioner with a screwdriver.  The attack concluded when the respondent’s security guard subdued him.

As stated previously, this Court must decide whether this accident arose out of  and in the course of petitioner’s employment with the respondent.

The proofs presented clearly establish that the petitioner’s accident arose “in the course of her employment.”  In the case of Hammond v. Great Atlantic and Pacific Tea Co., 56  N.J. 7, 264  A. 2d 204 (1970) the court stated that an accident is encompassed by this phrase so long as it occurs while the employee is doing what he or she may reasonably do within the time he is employed and at a place where he may reasonably be during that time.  There is no dispute about the fact that the petitioner was performing the duties of a pharmacy technician on the respondent’s premises when she was attacked; and hence, her attack arose in the course of her employment.

The second  element that the petitioner must prove in order to establish compensability of a work-related accident is that her accident “arose out of” her employment.  This phrase deals primarily with the causal origin of the accident and its connection with the employment.  By its very definition it requires an analysis of the risk which occasioned the injury and whether such risk is contemplated as an incident of employment.  Citing Coleman vs. Cycle Transformer Corp., 105 N.J. 285 (1986).

In the Coleman case, the Supreme Court mentioned that our courts rely upon the “but for” test to determine whether the requirements of this phrase have been satisfied.  It stated: 

“Essentially, that test asks whether it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere.”

The court also referenced the fact that the “but for” test includes as one of its components a consideration of the nature of the risk that caused the injury to the employee.  Those risks fall into three distinct categories. 

The first category includes those that are “distinctly associated” with the employment.  For example, an employment in an industrial setting would encompass in this description injuries occasioned by machinery breaking, explosives exploding, and fingers getting caught in gears.

The second category of risks are those which are described as “neutral.”  These are defined as “uncontrollable circumstances” that do not develop in the employment environment.  Instead they “happen to befall the employee during the course of his employment.”  The Coleman court gave examples of compensable accidents encompassed in this category.  One example was that of an employee struck by lightning while working and a second example was that of a worker struck by an arrow shot by a neighborhood boy aiming at a tree on the employer’s premises, see Coleman at page 292.

The third category of risks are those purely personal to the employee.  Risks found in this classification do not bear a sufficient causative relationship to the employment to allow them to be considered as having arisen out of that employment.  The court in Howard v. Harwood’s Restaurant Co., 25 N.J. 72, 135 A. 2d 161 said in these situations it is “. . . the personal proclivities or contacts of the employee which give rise to the harm, so that even though the injury takes place during the employment, compensation is denied.”

Based upon a consideration of all the proofs presented, I find that the petitioner has failed to establish that her accident arose out of and in the course of her employment.  More specifically, I find that it did not arise in the course of - - bear with me for a moment.  Arise out of her employment.  I do so for the following reasons.

First, the petitioner’s own testimony unequivocally indicates that the reason for her assault  was the desire to end her personal relationship with Davis, her attacker.  She testified that this was the reason she had been assaulted by him on several prior occasions.  When asked if this was the same reason she felt she was attacked at work, her answer was, “yes.”

Secondly, there were no proofs presented that would suggest that there was any connection between the petitioner’s attacker and the respondent’s store and premises but for his relationship with the petitioner.  There was no evidence that Davis had previously been acquainted with any other store employees or that he had ever been a customer at the store.

Thirdly, a review of the case law most relevant to this issue reveals precedent containing facts very similar to the case at bar, and the decision therein supports this Court’s findings.

In the case of Marky v. Dee Rose Furniture Co., 241 N.J. Super. 207 (1990) the petitioner was shot while at her place of employment on March 19, 1987, by a man with whom she had previously maintained a relationship. 

She had dated her eventual assailant for at least one year before attempting to sever that relationship.  Despite that attempt the assailant continued to call her by telephone and come to her home.  The petitioner refused to speak to him and instead called the police.  Five days prior to the shooting, the assailant came to her home.  The petitioner did not see him, but when her attention was attracted by certain noises, she called the police.  When they arrived, they found the assailant and charged him with trespass.

On the day of the shooting, the petitioner had gone to a store a few blocks away from the respondent’s furniture store where she worked.  She went there to pick up sandwiches for herself and a friend.  While she was there, a male co-employee by the name of Brinker walked into the store to pick up his sandwich order.  He and the petitioner left the store together, but they returned to the store in separate cars.  Of note was the fact that Brinker and the petitioner had gone to dinner together on two prior occasions.  On both occasions, the petitioner went home and Brinker returned to the respondent’s store.

Shortly after Brinker and the petitioner returned to the respondent’s store, the assailant arrived with a gun.  He first shot Brinker twice.  He then went to the office where he found the petitioner and shot her in the arm and side.  The petitioner testified that “ . . . he screamed at me saying, ‘you won’t go out with me but you’ll go out with (Brinker) for lunch.’”

In Marky, the appellate division reversed the Workers’ Compensation Judge’s decision that  the petitioner’s injuries were compensable.  In explaining its decision, the court stated:

“ We do not believe that the risk of Rosa (the assailant) committing an attack on petitioner was limited to the job site so as to come within the category of a neutral risk.  The facts reveal that Rosa (the assailant) had continuously sought contact with the petitioner both by phone and at her home.”

The facts in the case at bar are even more strongly supportive of a finding of non-compensability than those in Marky.

First, in Marky, the only episode of violence between the assailant and the petitioner occurred at work.  In this case, the petitioner had been beaten and attacked by Davis on several prior occasions and none of them had occurred at the respondent’s premises.

Secondly, in Marky there was a factor over and above the mere occurrence of the attack that was associated with the petitioner’s employment.  That factor was a relationship between the petitioner and Brinker, the co-employee.  The shooting of that co-employee and the comment made by the assailant to the petitioner about that relationship just before he shot her certainly suggests that this work-developed relationship, at least in the deranged mind of the assailant, may have constituted a motivation for his attack of the petitioner.

Despite that fact, the court still found the attack to be non-compensable. 

In the present case, other than the place of the attack, there is no other factor or element that equates to a connection between the petitioner’s attack and her employment.  In order for the petitioner to prevail, the Coleman case requires her to establish that “ . . . it is more probable that the accident would not have occurred under the normal circumstances of everyday life outside of the employment.”  Cite Coleman at 295.

The proofs presented clearly are to the contrary.  For the reasons set forth above and based upon a consideration of all the proofs presented, I find that the nature of the risk that precipitated the petitioner’s attack was purely personal to the petitioner and, therefore, non-compensable.

I therefore dismiss this claim petition with prejudice.  I will assess a stenographic fee of $450 to be paid by the respondent.  I direct respondent’s counsel to now prepare and submit to the Court for its signature an appropriate order of dismissal.

MR. MARCOZZI:       Thank you, your Honor.

MS. CELONA:            Thank you, your  Honor.

THE COURT:              You’re welcome.

(Whereupon, this matter is dismissed.)

I, JUDGE ROBERT F. BUTLER, certify that the foregoing is a true and accurate Decision as taken on the date hereinbefore mentioned.

                                                            ___________________________________

                                                            Robert F. Butler
                                                            Judge of Compensation

Dated:  March 31 , 2003