SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1686-15T3

BRIAN GRAWEHR,

Petitioner-Respondent,

v.

TOWNSHIP OF EAST HANOVER,

Respondent-Appellant.

________________________________________________________________

Submitted February 14, 2017 – Decided

Before Judges Rothstadt and Sumners.

On appeal from the Department of Labor, 

Division of Workers' Compensation, Claim 

Petition No. 2012-28125.

Weiner Lesniak, LLP, attorneys for appellant 

(Louis M. Masucci, Jr., on the briefs).

Anthony P. Caivano, attorney for respondent.

PER CURIAM

In this appeal, we are asked to determine whether a worker's 

injury sustained at his place of employment on his day off is 

compensable under the Workers' Compensation Act (the Act), 

N.J.S.A. 34:15-1 to -146, when the worker performed a function 

NOT FOR PUBLICATION WITHOUT THE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.

June 29, 2017
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incidental to his employment while on the employer's premises. We 

hold that the injury is compensable. 

Employer Township of East Hanover appeals from a 

determination of compensability and award for partial disability 

made by a judge of compensation to Brian Grawehr, a township police 

officer. The judge found that Grawehr was at police headquarters

to perform a service that was a benefit to the township before his

fall in a municipal parking lot. The township argues on appeal 

that the judge's determination of compensability was in error 

because at the time Grawehr was injured, he was on a day off and 

at headquarters for purely personal reasons, his injury did not 

arise from the course of his employment, and the township did not 

receive any benefit from Grawehr's presence at headquarters that 

day. It also contends the judge of compensation's comments about

the applicability of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 

to 12-3, demonstrated "prejudice[]" against the township.

Grawehr filed a petition for benefits after he slipped and 

fell on ice in a parking lot at the police department's

headquarters, causing him to suffer injuries to his shoulder that 

required surgery. When the township denied that his injury arose 

out of his employment, the judge of compensation scheduled a trial 

as to compensability only.
3 A-1686-15T3

The contested issue at the trial was Grawehr's reason for 

going to headquarters. At the trial, Grawehr, the police chief,

and a lieutenant testified, as did the municipal court

administrator. Grawehr testified that he went to headquarters on 

December 9, 2011, a day he was not scheduled to work. There was 

no official reason for being in the office that day. According 

to Grawehr, he went to the office to pick up his pay stub and to 

check his personal folder for any new subpoenas to ensure he would 

not be disciplined for missing a scheduled court date, as he was 

aware of other officers facing discipline problems because of not

appearing.

Grawehr, the police chief, and the municipal court 

administrator confirmed that there were problems with police 

officers missing scheduled appearances due to the then-recent 

merger of the township's municipal court with neighboring Township 

of Hanover's court. The merger created a "chaotic" situation and 

tension between the township's police department and Hanover's 

municipal court personnel. Problems involving scheduling and 

officers' court appearances continued through December 2011.

There was no evidence, however, that Grawehr ever failed to appear. 

Moreover, there was no immediate court date scheduled as the next 

session was to be held no sooner than December 22.
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There was also testimony adduced at the trial about the police 

department's handling of its officers' court appearances. For 

example, an officer's appearances in court was usually scheduled

for days when he or she was on duty. Also, while officers were 

required to check their schedules and files for subpoenas, there 

was no requirement that they come to headquarters on their day off

for that purpose. However, according to the lieutenant who 

testified, it was "not uncommon" for police officers – especially

the "diligent" ones – to come in on their days off to do work 

related activity. In fact, the lieutenant would regularly go into 

work when he was not scheduled to be there to check his own file. 

After considering the testimony, on May 2, 2014, the judge 

of compensation found that Grawehr's injury was compensable, 

placing his reasons on the record on that date. The judge 

recounted the facts, made credibility determinations, and found 

that Grawehr's actions on the day he fell were performed as a 

"benefit to the employer," even though the officer was "killing 

two birds with one stone" by also stopping at work to pick up his 

pay stub. According to the judge, it was "clearly of benefit to 

the employer to have officers paying attention to their 

responsibilities and checking [their file] even on . . . off 

times." On December 11, 2015, the judge entered a final order 

finding Grawehr 27 1/2% disabled arising from the "permanent 
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residuals" from his shoulder injury and awarding $41,187 for the

disability as well as medical expenses. This appeal followed.1

In our review of workers' compensation courts' decisions, we 

generally give substantial deference to their determinations, 

limiting our review to "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 . . . 

their credibility." Lindquist v. City of Jersey City Fire Dep't., 

175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J.

589, 599 (1965)). "Deference must be accorded . . . unless . . . 

'manifestly unsupported by or inconsistent with competent relevant 

and reasonably credible evidence as to offend the interests of 

justice.'" Ibid. (quoting Perez v. Monmouth Cable Vision, 278 

N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J.

277 (1995)). "[T]he judge of compensation's legal findings are 

not entitled to any deference and, thus, are reviewed de novo." 

Hersh v. Cty. of Morris, 217 N.J. 236, 243 (2014).

 

1 The township originally filed its appeal from the 

compensability determination, which we dismissed as premature. 

After the final order was entered, the township moved for 

reconsideration and reinstatement of the appeal. We granted the 

motion.
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Based upon our careful review of the record and applicable 

legal principles, we "conclude that all of the[] factual 

determinations made by the workers' compensation judge were 

supported by substantial credible evidence in the record 'and 

[were] not so wide off the mark as to be manifestly mistaken.'" 

Acikgoz v. N.J. Tpk. Auth., 398 N.J. Super. 79, 87 (App. Div.)

(second alteration in original) (quoting Tlumac v. High Bridge 

Stone, 187 N.J. 567, 573 (2006)), certif. denied, 195 N.J. 418 

(2008); see also R. 2:11-3(e)(1)(D). We affirm substantially for

the reasons expressed by the judge of compensation. We add only 

the following comments.

Injuries sustained by an employee in an employer's parking 

lot are compensable if they are sustained "in the course of 

employment," before or after the actual work day begins or ends. 

Konitch v. Hartung, 81 N.J. Super. 376, 382-83 (App. Div. 1963), 

certif. denied, 41 N.J. 389 (1964); accord Bradley v. State, 344 

N.J. Super. 568, 575-76 (App. Div. 2001). They are compensable 

because entitlement to workers' compensation benefits is 

controlled by the "premises rule" set forth in N.J.S.A. 34:15-36.

See Kristiansen v. Morgan, 153 N.J. 298, 316-17 (1998), modified, 

158 N.J. 681 (1999). The Act provides that "[e]mployment shall 

be deemed to commence when an employee arrives at the employer's 

place of employment to report for work and shall terminate when 
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the employee leaves the employer's place of employment, excluding 

areas not under the control of the employer . . . ." N.J.S.A.

34:15-36. The fact that "the injured employee may have been 'off 

the clock' does not automatically preclude compensability because 

the situs of the accident is a dispositive factor," Acikgoz, supra, 

398 N.J. Super. at 88, as long as the employee is injured in an 

"accident arising out of and in the course of employment[.]" 

N.J.S.A. 34:15-7. 

An injury arises out of the employment if "it is more probable 

that the injury would not have occurred under the normal 

circumstances of everyday life outside of the employment[.]" 

Coleman v. Cycle Transformer Corp., 105 N.J. 285, 291 (1986)

(emphasis in original). "An accident arises 'in the course of' 

employment when it occurs (a) within the period of the employment 

and (b) at a place where the employee may reasonably be, and (c) 

while he is reasonably fulfilling the duties of the employment, 

or doing something incidental thereto." Crotty v. Driver Harris 

Co., 49 N.J. Super. 60, 69 (App. Div.) (emphasis added), certif. 

denied, 27 N.J. 75 (1958). "A corollary to this rule is that an 

injury is compensable if it 'arises out of a risk which is 

reasonably incidental to the conditions and circumstances of the 

employment.'" Salierno v. Micro Stamping Co., 136 N.J. Super.

172, 176 (App. Div. 1975) (quoting Buerkle v. United Parcel Serv., 
8 A-1686-15T3

26 N.J. Super. 404, 407 (App. Div. 1953)), aff'd, 72 N.J. 205 

(1977). "An employee does not have to be actually engaged in work 

for the employer at the time of the accident." Ibid. (citing Van 

Note v. Combs, 24 N.J. Super. 529, 533 (App. Div. 1953)). 

However, the mere fact that a petitioner's injuries are 

sustained at work does not satisfy the requirements of the Act. 

"[T]o trigger coverage under workers' compensation there must be 

a causal connection between the accident and the employment. Situs 

alone is not enough." Mule v. N.J. Mfrs. Ins. Co., 356 N.J. Super.

389, 397 (App. Div. 2003). 

To find the requisite causal connection 

between the employment and the injury, "[i]t 

must be established that the work was at least 

a contributing cause of the injury and that 

the risk of the occurrence was reasonably 

incident to the employment." [Coleman, supra, 

105 N.J. at 290.] New Jersey has adopted the 

"but for" or "positional-risk" test. Ibid.

"'But for' connotes a standard of reasonable 

probability. Thus stated, the question is 

whether it is more probably true than not that 

the injury would have occurred during the time 

and place of employment rather than 

elsewhere." Howard v. Harwood's Rest. Co., 

25 N.J. 72, 83 (1957).

[Sexton v. Cty. of Cumberland/Cumberland 

Manor, 404 N.J. Super. 542, 549 (App. Div. 

2009) (first alteration in original).]

An injury incurred at the employer's premises as a result of 

the worker performing a task that was mutually beneficial to the 

him and his employer is compensable, even if it occurs after work 
9 A-1686-15T3

hours, see Salierno, supra, 136 N.J. Super. at 176-77 (holding 

that a heart attack experienced by a worker during contract 

negotiations on behalf of his union was compensable), as long as 

the injury arises "from or be contributed to by conditions which 

bear some essential relation to the work or its nature." Stroka 

v. United Airlines, 364 N.J. Super. 333, 339-40 (App. Div. 2003) 

(quoting Williams v. W. Elec. Co., 178 N.J. Super. 571, 585 (App.

Div.), certif. denied, 87 N.J. 380 (1981)), certif. denied, 179 

N.J. 313 (2004).

Applying these guiding principles, we conclude that Grawehr 

was injured during the course of having performed a function that 

was at least mutually beneficial to him and his employer by taking 

time out to review his file for any upcoming court appearances, 

especially in light of the chaos that existed because of the 

municipal court mergers. Under these circumstances, Grawehr's 

injuries were compensable as he would not have otherwise sustained 

his injury if he was not performing that function at his place of 

employment.

Turning to the township's remaining argument about the judge 

of compensation's comment regarding the TCA, we too are perplexed

by the judge's discussion of that act and its applicability to 

Grawehr's petition. However, we discern no prejudice to the 

township arising from that discussion.
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Affirmed.