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A worker sent out to dinner by his employer and injured in an accident on his way back to the job site is eligible for workers’ compensation benefits, the New Jersey Supreme Court ruled last week. The ruling, in Sager v. O.A. Peterson Construction Co., A-65-03, refines a doctrine articulated earlier this year in Lozano v. Frank DeLuca Construction Co., 178 N.J. 513 (2004), namely, “when an employer compels an employee’s participation in an activity generally viewed as recreational or social in nature, the employer thereby renders that activity work-related as a matter of law.” The Appellate Division ruled in Sager before Lozano was handed down, Justice James Zazzali noted, and thus reached an opposite conclusion. The Sager ruling marks yet another expansion of the “going and coming rule” that has broadened availability of workers’ comp benefits over the years. On Sept. 11, 2001, the day terrorist attacks destroyed the World Trade Center, Robert Sager, a New Jersey resident employed by O.A. Peterson Construction Co., was working at a Long Island building site. Since all bridges and tunnels leading to and from Manhattan had been closed, it was obvious that he and his co-workers would not be able to return to New Jersey. At 3 p.m., the on-site supervisor, John Devlin, told the workers they could go grab an early dinner and then return to the site and continue working in the hope the bridges would reopen later. While they were out, their van collided head-on with another vehicle. Zazzali, with four other justices agreeing, found Sager was acting under Devlin’s directions when he left the site for dinner. “It is immaterial that Devlin’s directive to Sager and the other employees involved participation in what is generally considered a social activity,” he wrote. “[M]any, perhaps most, employees experience situations where they feel obligated to comply with their employer’s request, regardless of its nature. They usually comply with the request, rather than damage that relationship.” Justice John Wallace Jr., in a dissent joined by Justice Robert Rivera-Soto, would have remanded the case back to the workers’ compensation judge for further hearings, finding no clear evidence that Devlin issued a clear directive for the employees to leave the site to get dinner. Sager’s attorney says the ruling was not unexpected in light of the court’s prior ruling in Lozano. “When an employer says ‘go,’ the Court realizes that the employee is going to go,” says Scott Kessler, of Rahway’s Tobin, Koster, Oleckna, Reitman, Greenstein & Konray. “That is really what happened here.” O.A. Peterson’s attorney, Ramsey solo Francis Giuliano, was away from his office last week and could not be reached.

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