SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3361-15T2

ALAN LONGSTREET,

Petitioner-Respondent,

v.

COUNTY OF MERCER,

Respondent-Appellant.

__________________________________

Argued May 9, 2017 – Decided June 20, 2017

Before Judges Fisher, Leone and Moynihan.

On appeal from the Division of Worker's 

Compensation, Department of Labor, Claim 

Petition No. 2015-7384.

Lora V. Northen argued the cause for appellant 

(Capehart & Scatchard, P.A., attorneys; Ms. 

Northen, of counsel; John W. Pszwaro, on the 

briefs).

Gary E. Adams argued the cause for respondent 

(Pellettieri, Rabstein and Altman, attorneys; 

Mr. Adams, on the brief).

PER CURIAM

Respondent, County of Mercer, appeals from the workers'

compensation court's holding that petitioner, Alan Longstreet, 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.
2 A-3361-15T2

suffered a compensable work-related injury while plowing snow on 

Nursery Road in West Trenton on January 27, 2015. We find that 

the evidence does not support the court's conclusions regarding 

the circumstances of the accident, and reverse and remand the case 

for a new trial.

Petitioner was employed by the County of Mercer as an asphalt 

heavy equipment operator. He testified that at midnight on January 

27 he switched from loading salt with a front-end loader to plowing 

snow in a road grader. Petitioner claims he was injured while 

operating the grader when he hit what he believed to be a manhole 

cover on Nursery Road at approximately 4:00 a.m. The force of the 

collision snapped both blades of the grader. After speaking with 

his supervisor, he brought the vehicle to the garage for repair. 

Petitioner filled out a repair request and a number of mechanics 

immediately repaired the blades. Although petitioner was told to 

put the machine back on the road after the repair was completed, 

he "no longer did anymore operation with that unit," because the 

snow removal process was completed. He drove his own vehicle to 

the location where he believed the accident occurred at 10:00 a.m. 

He ended his workday at 3:00 p.m.

In her initial decision, the judge found that petitioner's 

shift on January 26, 2015, started at 7:00 p.m. and was scheduled 

to end at 3:30 p.m. on January 27. The judge acknowledged that 
3 A-3361-15T2

"company records," introduced during the testimony of Al Rhodes 

on August 13, 2015, confirmed that petitioner was originally 

assigned to load salt utilizing front end loader #281; he was 

instructed at around midnight to begin snow plow operations in

grader #57. 

The judge found the County's "business records," introduced 

during Chris Markley's testimony, substantiated that petitioner

brought a grader to the County's repair shop for the repair of 

broken blades. The repair order was initialed by petitioner, and 

identified the damaged vehicle as a 2003 New Holland grader. The 

number 57 appears at the top of the form.

Janel Bisacquino, a Geographical Information Systems 

Specialist II employed by the County, also testified and, from 

that testimony, the judge found that the County's global 

positioning system (GPS) records showed grader #57 was parked at 

the North Salt Dome at Mercer County Airport at around midnight.1 

At around 2:00 a.m. it was moved to2 Interstate 953 where it

 

1 Bisacquino testified that at 12:24 a.m., the vehicle was at 104 

Mercer County Airport.

2 Bisacquino testified the GPS records indicated the vehicle was 

on "I95" at 1:59:55 a.m.

3 In her amplified decision, the judge concluded, "The GPS tracking 

information report showed that Vehicle #57 moved . . . to the 

[County's] salt dome at around midnight . . . and then it did not 
4 A-3361-15T2

remained, stationary, until 6:38 a.m. Records indicate it was on 

Nursery Road only on four separate occasions between 7:30 a.m. and 

10:17 a.m.

The judge concluded that the New Holland grader was not the 

same vehicle as grader #57, and drew a negative inference from the 

County's failure to produce GPS data for the 2003 New Holland 

grader. After commenting that the County did not "set forth a 

logical alternative factual proposition" to counter petitioner's 

version of events, the judge opined: 

Here, the only logical conclusion that can be 

drawn from the [County] proving that vehicle

#57 didn’t move before 6:38 a.m. and the 

Petitioner proving that he limped a New 

Holland Grader 2003 into the repair shop with 

broken blades is that the Petitioner did not 

drive the Grader that he was assigned to use 

prior to 6:38 a.m. The Court, therefore, finds 

that the Petitioner has produced sufficient 

credible evidence to show that he was involved 

in a work related accident while operating the 

New Holland Grader 2003 and as a result of 

that accident, the blades were damaged and 

needed to be repaired.

The judge filed an amplification of her decision pursuant to 

Rule 2:5-1(b). She clarified that petitioner "used, at least, two 

vehicles over the course of his shift." Reiterating her finding 

that grader #57 did not move until 6:38 a.m., she surmised:

 

move again until around 6:38 a.m. . . . ." She did not mention 

the movement of the vehicle to Interstate 95, as she had in her 

initial decision.
5 A-3361-15T2

The GPS tracking information did not exclude 

the possibility that the Petitioner could have 

begun using Vehicle #57 at around midnight, 

switched to the vehicle he brought into the 

repair shop, then, after he had his accident 

and brought the vehicle into the repair shop, 

switched back to vehicle #57.

We are mindful of our standard of review. We need determine 

"'whether the findings made could reasonably have been reached on 

sufficient credible evidence present in the record,' considering 

'the proofs as a whole,' with due regard to the opportunity of the 

one who heard the witnesses to judge of their credibility." Close 

v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation omitted); see

also Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004). 

Only if the factual findings and legal conclusions of the trial 

judge are "manifestly unsupported by or inconsistent with 

competent, relevant and reasonably credible evidence as to offend 

the interests of justice," will they be disturbed on appeal. Rova 

Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

After careful scrutiny, we are compelled to find that there 

is no evidence to support the judge's finding that petitioner

began plow operations in grader #57 around midnight, switched to 

another vehicle—a 2003 New Holland grader—that he brought to the 

shop for repair, and then switched back to grader #57. That 

conclusion does not account for petitioner's testimony he drove 

only three vehicles that night: the front-end loader he used to 
6 A-3361-15T2

load salt, the grader he used to plow snow, and his personal 

vehicle he used to visit the accident scene. It does not consider 

that he never claimed he operated two different graders, and that 

he testified he did not plow snow after the accident. It does not 

explain why the repair order for the 2003 New Holland grader has

the number "57" on the top of the form. The judge's finding that 

petitioner drove two separate snow plowing vehicles cannot explain 

away the evidence from both parties that petitioner drove only one 

snow plowing vehicle that evening. Thus, the judge failed to 

resolve the discrepancy raised by the GPS evidence that showed 

grader #57 was not in operation, and was not on Nursery Road, at 

the time petitioner said the accident occurred. An inference by 

a judge must be a deduction of fact that is reasonably and 

logically drawn from another fact or group of facts established 

by the evidence. Rapp v. Pub. Serv. Coordinated Transp., Inc., 

15 N.J. Super. 305, 317 (App. Div. 1951), aff'd, 9 N.J. 11 (1952). 

No evidence supports an inference that petitioner drove two snow 

plowing graders.

4 

We are satisfied the case must be reversed and remanded for 

a new trial. We recognize that it would be a difficult and 

 

4 This is not a case where the judge made credibility findings and 

based her conclusions thereon. We would certainly defer to those 

findings. 
7 A-3361-15T2

uncomfortable task for the judge to consider the evidence anew in 

light of, as made more apparent by her amplified decision, the 

judge's deep-rooted stance on the proofs. We, therefore, order 

the matter to be tried before a different judge. R. 1:12-1(d). 

Since we find that the trial court's decision that petitioner

drove more than one grader is without evidential support, we also 

find that the judge was mistaken in drawing a negative inference

based on the County's failure to produce documents and GPS 

information for the 2003 New Holland grader. The County's evidence 

was that the 2003 New Holland grader and grader #57 were two names 

for the same vehicle, for which the County did produce GPS 

information. Absent evidence that they were different vehicles,

and that petitioner drove more than one vehicle, it was an abuse 

of discretion to draw that negative inference.5 See N.J. Div. of 

Child Prot. & Permanency v. K.G., 445 N.J. Super. 324, 342 (App. 

Div.) (stating that appellate courts "review a trial judge's 

evidentiary rulings for abuse of discretion"), certif. denied, 228 

N.J. 38 (2016); Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 

 

5 Although the court, in her amplified decision, said that she 

"did not need to resort to any adverse inferences," she also said 

she could not "ignore" the County's failure to determine the 

location of the vehicle, the license plate and make and model of 

which were set forth on the repair order, on the night in question. 

This indicates that she did negatively consider the County's

failure to take that step.
8 A-3361-15T2

424 N.J. Super. 448, 474 (App. Div.)(applying an abuse of 

discretion standard for adverse inference rulings), certif. 

denied, 212 N.J. 198 (2012).

The County also claims the judge mistakenly considered Dr. 

Weiss's testimony regarding the causal relation between 

petitioner's injuries and the accident to be more persuasive than 

the contrary testimony given by Dr. Hu, because Dr. Hu was the 

treating physician. We need not consider that claim because we 

are reversing the compensation order on other grounds and remanding 

for a new trial before a different judge, who may consider 

bifurcating this issue and resolving, first, whether petitioner 

was involved in a compensable accident. 

Reversed and remanded for proceedings consistent with this 

opinion. We do not retain jurisdiction.