STATE OF NEW
JERSEY
BEFORE:
HONORABLE SHELLEY B. LASHMAN APPEARANCES:
PRESS & LONG, P.A.
HOWARD W. CRUSEY, JR., ESQ. ISSUE This trial was bifurcated by me as to two issues: an accident arising “in the course of employment;” and knowledge and notice to the employer. FACTS Petitioner was a 56 year old blackjack dealer employed by the respondent for 10 years. The claim petition, filed September 27, 1999, alleged a slip and fall in “June 1999” causing “internal derangement of the left knee.” The claim petition alleged he stopped work on August 28, 1999 and was still out. The claim petition also alleged: “Around August 10, 1999 to nurses’ station” as the date injury was reported to the employer and to whom. Respondent’s answer admitted employment on the date alleged in the claim petition, but denied the alleged accident arising out of and in the course of employment. In addition, the claim petition alleged “a lack of timely notice and knowledge.” There is a New Jersey Temporary Disability lien against the file in the amount of $8,825.40 for disability from August 29, 1999 through February 14, 2000. On a September 22, 1999 petitioner signed an agreement to file a Workers’ Compensation disability claim to repay this lien with any Workers’ Compensation award. The pretrial memorandum executed before me on July 13, 2000, alleges medicals had been “paid by private health insurance.” The trial commenced September 14, 2000 before me with the testimony of petitioner on direct and cross-examination. The trial was completed on November 16, 2000 with the testimony of the respondent’s supervisor who was assigned to the Security Investigations Unit and in charge of the Security Monitoring Room. Petitioner Gotlieb, now age 55, testified he was currently employed as a blackjack dealer by respondent, Showboat Hotel & Casino. Petitioner worked from 6:00 P.M. to 2:00 A.M.. Petitioner would usually buy lottery tickets from the bowling alley in the respondent’s hotel and casino on Thursdays. Petitioner is entitled to a 20 minute break usually after one hour of work. During break, he is not allowed to leave the premises, and probably not allowed to be in the public areas to prevent receipt of “tokes” (tips) from customers. Petitioner testified that “ . . . in June sometime, I think it was like towards the latter part of the month . . . it was on a Thursday . . . because that’s the day that they pick the lottery [New Jersey Pick-Six], the numbers of the lottery. I usually get the tickets right before they pick them.” He believed he “broke a twenty after 7:00, was due back at twenty of eight, and sometime between twenty-after seven and twenty of eight I purchased lottery tickets . . . in the casino bowling alley which is on the same floor as the break room.” He was “not quite sure” if that was one of the places that he was allowed to go to during the time of his break. After purchasing the tickets, petitioner testified he intended to “go back to the floor” to return to his shift. “When I left the bowling alley I made a right turn. I was going down the escalator to the floor and there were three steps. I believe the top step was black and the next couple of steps were like a floral print and I don’t know what happened. I lost it and landed on my left side and I was kind of startled.” Petitioner testified he slipped and fell. He believed his legs came out from under him. The floor was carpeted. There were five or six patrons standing around, and he told one of them: “I was okay and I shook it off and it was time to go back to work..” His knee area “hurt a little bit.” He did not tell anyone immediately because: “Well, it didn’t bother me at the time. I didn’t want to make a big deal out of it. I have a pretty good rating with the casino as far as their point system is concerned . . . If you’re late or you call out, if you don’t have the time coming to you, they give you a point, and if you accumulate a certain amount of points they terminate you . . . and I didn’t want to lose any time off from work. I have a family to feed. Petitioner finished his shift and after “a week or two it started to bother me . . . I was kind of sore . . . I was having trouble working for eight hours . . . standing . . . I would . . . start getting excruciating pain in my knee area,” but he continued to work and did not tell any supervisors or see any doctors for approximately six weeks. Petitioner finally reported the incident to Don Cook, his shift manager, around the time he first sought medical treatment at the Casino Health Services which was on or about August 16 or August 20, 1999. The Health Services record of August 20, 1999 read: “Patient claims he injured his left knee around June 15, 1999. Does not recall specifics of injury but states I think it’s twisted.” On cross-examination petitioner testified he took the same route approximately once a week when he purchased his lottery tickets. The carpet had been there for quite awhile. He did not recall anything on the steps, nor any tears, holes or defects in the carpet. He also testified on cross-examination that he was a diabetic and had had leg cramps throughout the years, but that his legs had never given out on him. Petitioner was sure he either slipped or missed a step on the date of the accident. Thomas Foss, the Security Supervisor testified that the respondent utilizes video cameras in the public areas, to record any incidents that may occur. Petitioner was familiar with the area where petitioner testified he fell, and there is a security camera that covers that area. However, respondent’s videotapes are recycled every 72 hours unless they are notified of any incident. Foss was unaware of any accident happening to Gotlieb. On cross-examination, Foss testified that the 72-hour recycling policy was based on the Showboat Casino policy which requires all employees to report to the medical unit and complete an accident report immediately following any accident on the property. FINDINGS
OF FACT AND CONCLUSIONS OF LAW I. I find, based on petitioner’s uncontradicted testimony that the alleged accident did not “arise out of ”petitioner’s employment for respondent. It did arise “within the course of” petitioner’s employment for respondent, but our law has two prongs for liability and both must be met for compensability. The basis for that finding is that petitioner’s alleged accident occurred during a designated break from work. Petitioner was involved in a personal errand away from his station of employment, to purchase a lottery ticket for himself at the bowling alley which is in a public area of the casino. This type of activity has been termed “a personal proclivity” by our courts. Petitioner’s situation is analogous to Coleman v. Cycle Transformer Corp., 105 N.J. 285 (1986) in which the petitioner set her hair on fire while lighting a cigarette during her lunch break. That court held that the resulting injuries were totally personal to the worker. In Sparro v. La Cachet, 305 N.J. Super. 301 (App. Div. 1997) the petitioner reported to work at a beuaty salon where she worked as a beautician. Upon being told no work was available that day the petitioner requested a “free facial” because she was going on vacation. The resulting burn and scarring were held to be a purely personal risk. Similarly, in Zahner v. Pathmark, 321 N.J. Super. 471 (App. Div. 1999), petitioner was injured after she had “punched out” and remained on the store premises to food shop for her mother. Here again the activity and resultant injury from slip and fall were held to be purely personal and not compensable. II. The testimony in the unstant case establishes that notice was not given to the respondent of the June 1999 alleged accident until August 16 or 20, 1999. Respondent was thereby substantially prejudiced in its inability, within 72 hours, to review and verify the very fact of the accident by the in-place video camera. Respondent was unable to treat and examine petitioner in accordance with casino policy which requires an immediate visit to the casino medical center and an immediate written accident report in order to provide appropriate treatment and verify the accident and the extent of injuries. The applicable statute, N.J.S.A. 34:15-17, requires notice within 30 days where the employer shows prejudice by the want, failure or inaccuracy of notice. It is clear that the Respondent was prejudiced by the delay in notice. Given the most liberal inference to petitioner from all testimony presented, the first notice here was given approximately 69 days following the alleged accident, on August 16, 1999. The alleged accident occurred on June 15, 1999. CONCLUSION For the foregoing reasons, petitioner’s claim is dismissed with prejudice after trial for failure to sustain his burden of proof of an accident “arising out of” the employment; as well as failure to give notice to the respondent within the 30 days as prescribed by the statute where the employer has shown substantial prejudice by lack of notice. Respondent’s attorney shall submit an appropriate Judgment forthwith for my signature. The stenographic fee to State Shorthand Reporting Service for the two days of trial is $250, all payable by respondent. ____________________________________ Shelley B. Lashman Judge of Compensation June 27, 2001 |
