IS  AN ACCIDENT THAT OCCURS DURING AN  OFF-SITE WORKING LUNCH BETWEEN TWO  MARRIED CO-WORKERS COMPENSABLE?

In the case of Gersh v. Richard Gersh & Associates, Inc., 2008 WL 596788 (N.J. Super. A.D. 2008), the Appellate Division held that an accident which occurs during an off-site working lunch between two married co-workers is compensable.

The petitioner, Arlene Gersh, was a secretary and office administrator in charge of visual material, editing and writing copy, and accounting and billing for her husband’s public relations firm of Richard Gersh & Associates, Inc.  She was the only other employee of the firm.  

She was involved in an accident after leaving the business office with her husband to attend lunch.  Her husband parks their vehicle at a parking meter. They realized that they had no change.  She attempted to cross the street to get change when she was struck by a motor vehicle. As a result she is hospitalized for several months and thereafter died. The lunch was not a social lunch. The purpose of the lunch was to obtain her opinion and to prepare a paper for the firm as to a meeting that was held in the morning by her husband with a client in New York.  It was the firm’s practice to attend such working lunches two or three times a week for which their clients were billed.

Ms. Gersh filed a workers’ compensation claim and upon her death her husband filed a dependency claim asserting that the incident was compensable. The workers’ compensation judge agreed and not only ordered temporary disability benefits, reimbursement of the PIP lien and medicare lien, but also awarded dependency benefits and funeral expenses. Thereafter, the matter was appealed by the workers’ compensation carrier, in the name of its insured, Richard Gersh & Associates, Inc.

Under N.J.S.A. 34:15-7, an accident is deemed compensable if it “arises out of” and “occurs in the course and scope of employment”.  In order to determine whether the “course of employment” component is met one must focus on the “time, place, and circumstances of the accident in relation to the employment”.  Coleman v. Cycle Transformer Corp., 105 N.J. 285, 288 (1986).    To satisfy the requirement of “arising out of” employment it must be shown that” “it is more probably true than not that the injury would occur during the time and place of employment rather than elsewhere”.  Id. at 290-91.  This is further referred to as the “causal relationship” element.  

It is fairly established law that an accident is not deemed to have occurred “in the course of employment” if the employer does not have control over the area in which the accident has occurred. The one exception to this off-site rule occurs when an employer directs an employee to engage in the off-site duties.  This is further extended to encompass incidents that occur while an employee is attending to certain basic needs while engaging in the directed off-premises duty.   The latter is known as the “minor deviation” rule. See Jumpp, Jr. v. City of Ventnor, 177 N.J. 470 (2003) and Ward v. Davidowitz, 191 N.J. Super, 518 (App. Div. 1983).

In order to establish causation, the second element of compensability, the courts look at three distinct categories of risks: (1.) distinctly associated, which involves risks that are directly related to employment, (2.) neutral, which involves risks that befall the employee during the course of employment and do not originate from the employment, and (3.) personal which involves those risks that are related to the employee’s own condition.  Coleman, supra, 105 N.J. at 291-92.  The first and second category are found to be compensable while the third is not.

As such, Ms. Gersh’s incident was deemed compensable because it “arose out of” and occurred in the “course of employment” despite her minor deviation from her direct task of attending the working lunch.  She went to obtain change for the parking meter in order for the business lunch to take place.  Her being struck by a motor vehicle while performing the directed task is considered a “neutral risk”, and is therefore compensable.


Nasim Oloomi, Esq.