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Tuesday, December 15, 2015

On Premises Assault by Co-Worker Held Not Compensable

The NJ Appellate Court decided that an assault by a fellow co-worker on the employment premises did not arise out of the employment and was not compensable. In reaching the opinion based on a narrow set of facts, the Court implemented the "Positional Risk Doctrine," rationalizing that the event that triggered the incident was not linked to the employment.

"....The ‘but for’ or positional risk doctrine includes as one of its components the nature of the risk that causes the injury. These include:
(1) The risk distinctly associated with the [e]mployment – all the obvious kinds of injury .... machinery breaking,
(2) Neutral risks – uncontrollable [c]ircumstances that do not originate in the [e]mployment but rather happen to befall the [e]mployee during the course of – acts of God[, s]uch as lightening. Such injuries are [c]ompensable.
(3) Risks personal to the employee – the [p]ersonal proclivities or contacts of the [e]mployee which give rise to the harm"

The assault occurred in the break room, while the employee was sleeping and arose out of pyramid money scheme that was known as a “susu.”

"....that the attack in this case arose from personal motivation and was not attributable to a risk of employment or to uncontrollable circumstances. Had petitioner not been a participant in his assistant's susu, the attack would not have occurred. Once he became involved and questioned his assistant about the “invested” money, he was attacked at a location that just happened to be their place of employment.

Joseph v Monmouth County, DOCKET NO. A–4044–13T3, (N.J. App. Div. 2015), 2015 WL 8547502. (This decision was not approved for publication.)


Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  have been representing injured workers and their families who have suffered occupational accidents and illnesses.