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What's Hot in Workers' Comp

The Appellate Court affirms dismissal of claim for plaintiff’s failure to demonstrate his injury was in the course and scope of his employment.

Mackoff v. New Brunswick Saw Serv., No. A-3625-19 (App. Div. July 14, 2021)

October 1, 2021

by Kiara K. Hartwell

The Appellate Division affirmed a workers’ compensation decision to dismiss a claim petition with prejudice and deny the petitioner’s motion for benefits. The petitioner worked as a salesperson and account manager for the employer, who sold food processing equipment. He worked mostly from home, but he also traveled to current and prospective client businesses.

On December 3, 2018, the petitioner traveled to meet with a client in West Caldwell, New Jersey. After the hour-long meeting, he decided to visit a favorite restaurant in Kenilworth, New Jersey. After lunch, he intended to stop by his office in Middlesex. On his way to the restaurant, he was involved in a car accident. The petitioner filed a claim petition. The employer denied compensability, arguing the incident did not arise out of and in the course of employment. A motion for medical and temporary benefits was also filed.

The petitioner testified that he wanted to get lunch after his meeting and before heading to his office. He decided to go to the restaurant as it was his “intention…to go to lunch at that point.” He also noted the restaurant was “theoretically…a prospect because they sell and serve… So it’s a…potential customer for me.” However, on cross exam, he admitted the restaurant was never a customer, that it was an hour away from his meeting, and that he had no other visits with current customers nearby.

In denying the petitioner’s motion and dismissing the claim, the judge found the petitioner failed to prove he had a work-related accident by a preponderance of credible evidence. The judge pointed out that it was not the petitioner’s intention to visit the restaurant as a prospective customer but, rather, just for lunch. The judge noted the petitioner’s attorney “prodded” him to say the restaurant was theoretically a prospective client, but that the petitioner seemed to lack conviction in that statement himself. Furthermore, the judge determined the petitioner was not visiting any nearby current customers and, as such, his sole purpose was for personal reasons.

The petitioner appealed, arguing he had not completed his work day and that going to the restaurant was a minor deviation. In addressing the first issue, the Appellate Division cited Jumpp v. City of Ventnor, 177 N.J. 470 (2003), where the Supreme Court found that determining compensability for an employee who works away from his/her office should be based on whether the employee was performing job duties at time of the injury. Because the petitioner admitted that: (1) the restaurant was two hours out of his way from his office, rather than going directly to his office from the meeting location; (2) the restaurant was never a customer; and (3) he had no other appointments with customers, the Appellate Division declined to disturb the judge’s findings. 

As for the second argument, the Appellate Division noted this was never raised before the judge below, but briefly addressed by stating the petitioner’s detour to the restaurant was not minor due to his decision to travel an hour away for lunch.
 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

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