                        NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0394-16T3
SAMUEL KAMENETTI,

        Petitioner-Respondent,

v.

SANGILLO & SONS, LLC,

     Respondent-Appellant.
__________________________________

              Argued December 19, 2017 – Decided August 8, 2018

              Before Judges Yannotti and Leone.

              On appeal from the New Jersey Department of
              Labor and Workforce Development, Division of
              Workers' Compensation, Claim Petition No.
              2015-030953.

              David P. Kendall argued the cause for
              appellant (Law Office of Ann DeBellis,
              attorneys; Ann DeBellis, of counsel; David P.
              Kendall, on the briefs).

              Robert B. White, III, argued the cause for
              respondent (Garces, Grabler & LeBrocq, PC,
              attorneys; Robert B. White, III, on the
              brief).

              Richard B. Rubenstein argued the cause for
              amicus curiae New Jersey Advisory Council on
              Safety and Health (Rothenberg, Rubenstein,
              Berliner & Shinrod, LLC, attorneys; Richard
              B. Rubenstein, on the brief).
PER CURIAM

       Respondent Sangillo & Sons, LLC (Sangillo) appeals from an

August 10, 2016 order of the Judge of Workers' Compensation (JWC).

The JWC found petitioner Samuel Kamenetti's injuries arose out of

and in the course of his employment.        We reverse and remand.

                                     I.

       The following facts are taken from the JWC's August 16, 2016

oral opinion, and the testimony of Kamenetti whom the JWC credited.

       Sangillo is a trucking company headquartered in Manalapan

that   has   five   trucks   used   for   over-the-road   truck   driving.

Kamenetti has been exclusively employed by Sangillo for over four

years as an interstate truck driver carrying loads throughout the

United States.      The tractor-trailer he drove was owned and insured

by Sangillo, and bore Sangillo's name and DOT number.

       Kamenetti used Sangillo's fleet credit card to pay for fuel,

and he was reimbursed for tolls.          Kamenetti was paid 25% of the

"load base," the fee Sangillo received for transporting the load.

Sangillo's appellate Statement of Facts (SOF), which Kamenetti

"accepts and adopts," states Kamenetti was not paid by the hour

or the mile.

       In October 2015, Kamenetti was hauling a time-sensitive load

of produce from California to New Jersey. On October 8, he stopped


                                     2                             A-0394-16T3
for the night at a small "mom and pop" truck stop in Wyoming.

Such stops have parking but do not have other amenities such as

showers.    Kamenetti slept in the truck that night.

     After waking up on October 9, Kamenetti needed a shower.      He

drove for an hour to a Flying J, a larger, full-service truck stop

and part of the Pilot Flying J nationwide chain.       It offered a

free shower to commercial drivers purchasing fifty gallons of

fuel.   He purchased over fifty gallons of fuel, parked the truck,

went into the Flying J, and took a shower.   Kamenetti then dressed

in the shower area.      He sat on a bench to put on his boots.

Unfortunately, the bench collapsed, causing him to fall and be

injured, about thirty minutes after he arrived at the Flying J.

     Kamenetti alerted Sangillo.     He drove to a clinic several

miles away where he was given pain medication.   He then proceeded

on the journey to drop off the cargo in New Jersey.        He later

accepted Pilot Flying J's settlement offer of $40,000.

     Kamenetti filed a claim petition for workers' compensation.

He filed a motion seeking medical treatment and temporary benefits.

The JWC heard testimony from Kamenetti and Sangillo's owner Jeffrey

Sangillo.    On August 10, 2016, the JWC granted the motion.       On

August 16, the JWC issued its oral opinion finding Kamenetti's

injuries "arose out of and in the course of his employment."       On

August 22, the JWC amended its order.

                                 3                          A-0394-16T3
     Sangillo appeals.       We permitted the New Jersey Advisory

Council on Safety and Health (COSH) to appear as amicus curiae.

                                  II.

     "Appellate   review     of   [factual    findings   in]      workers'

compensation cases is 'limited to whether the findings made could

have been reached on sufficient credible evidence present in the

record . . . with due regard also to the agency's expertise[.]'"

Hersh v. Cty. of Morris, 217 N.J. 236, 242 (2014) (quoting Sager

v. O.A. Peterson Constr., 182 N.J. 156, 164 (2004)).       Nonetheless,

"the judge of compensation's legal findings are not entitled to

any deference and, thus, are reviewed de novo."            Id. at 243.

Sangillo does not challenge the JWC's factual findings but only

his legal conclusions from those findings.       Thus, we must hew to

our de novo standard of review.

                                  III.

     The Workers' Compensation Act, N.J.S.A. 34:15-1 to -128,

provides that "[w]hen employer and employee shall . . . accept the

provisions of this article compensation for personal injuries to,

or for the death of, such employee by accident arising out of and

in the course of employment shall be made by the employer without

regard to the negligence of the employer[.]"           N.J.S.A. 34:15-7

(emphasis   added).   This    "'broad    statutory   language'"    led    to

decisions upholding "countless awards of workers' compensation

                                   4                               A-0394-16T3
benefits."     Hersh, 217 N.J. at 243 (citation omitted).          It also

resulted in "unjustified workers' compensation costs that [in the

late 1970s were] among the highest in the nation."            Jumpp v. City

of Ventnor, 177 N.J. 470, 476-77 (2003) (quoting Sen. Labor,

Indust. and Professions Committee, Joint Statement to Senate Comm.

Substitute for S. No. 802 and Assemb. Comm. Substitute for A. No.

840, 1 (Nov. 13, 1979)) (Joint Statement).

      "As a result, in 1979, the Legislature amended the Workers'

Compensation Act, updating the definition of 'employment' to be

more restrictive."      Hersh, 217 N.J. at 244.           The amendments

provided "relief from the far-reaching effect of the [pre-1979]

decisions by defining and limiting the scope of employment." Ibid.

(quoting Joint Statement at 2).           Specifically, "the Legislature

for   the    first   time   defined       on-premises   and   off-premises

employment."    Jumpp, 177 N.J. at 480.

            Employment shall be deemed to commence when
            an employee arrives at the employer's place
            of employment to report for work and shall
            terminate when the employee leaves the
            employer's place of employment, excluding
            areas not under the control of the employer;
            provided, however, when the employee is
            required by the employer to be away from the
            employer's place of employment, the employee
            shall be deemed to be in the course of
            employment when the employee is engaged in the
            direct performance of duties assigned or
            directed by the employer; but the employment
            of employee paid travel time by an employer
            for time spent traveling to and from a job

                                      5                             A-0394-16T3
          site or of any employee who utilizes an
          employer authorized vehicle shall commence and
          terminate with the time spent traveling to and
          from a job site or the authorized operation
          of a vehicle on business authorized by the
          employer.

          [N.J.S.A. 34:15-36 (emphasis added).]

     Thus, "[o]n-premises employment (as its terminology directly

implies), begins when the employee gets to the place where he or

she works (to the premises), and ends when the employee leaves

that place; off-premises employment, however, relates to the doing

of the work 'assigned or directed by the employer.'"        Jumpp, 177

N.J. at 480 (quoting N.J.S.A. 34:15-36).         "The employee who is

'required by the employer to be away from the employer's place of

employment [is] in the course of employment,' when he or she is

actually carrying out the work assignment and is therefore eligible

for benefits if injured at the point."       Ibid. (quoting N.J.S.A.

34:15-36).

     By the new statutory language, "the Legislature sought to

reduce   costs   by,   among   other   things,   'sharply   curtail[ing

compensability for] off-premises accidents,'" including ending

compensability for "'off-premises injuries sustained during lunch

hour and injuries sustained while traveling at the employer's

direction but deviating from a direct line of travel to pursue a

purely personal activity.'"     Jumpp, 177 N.J. at 477 (quoting Hon.


                                   6                            A-0394-16T3
Alfred J. Napier, Impact of the Reform Act of 1980, 96 N.J. Lawyer

17, 18 (Summer 1981)) (Napier).             "In furtherance of that 'clear

legislative mandate sharply curtailing compensability for off-

premises accidents,'" New Jersey decisions have "recognized the

legislative intent to focus on the performance of the work, thereby

limiting the reach of the workers' compensation statute," and

"barred recovery because the activities were personal in nature."

Id. at 482 (quoting Jumpp v. City of Ventnor, 351 N.J. Super. 44,

52 (2001), aff'd, 177 N.J. 470 (2003)).

     In Jumpp, our Supreme Court approved those decisions.                          Id.

at 480-83.        The Court "h[e]ld that when an employee is assigned

to   work    at    locations     away   from       'the   employer's       place     of

employment,'       eligibility    for    workers'         compensation      benefits

generally should be based on a finding that the employee is

performing his or her prescribed job duties at the time of the

injury."    177 N.J. at 482.

     The Court applied that holding to bar compensation to an

employee    whom    the   city   required     to    drive    from   site    to     site

throughout    a    city   performing    his    duties,      using   a    city-owned

vehicle.    Id. at 473-74.       The city "permitted [him] to make brief

stops at local establishments for food and beverages or to use the

restroom," and "to retrieve his personal mail from a local post

office."    Id. at 474.     One day, leaving his city vehicle running,

                                        7                                    A-0394-16T3
he went to the post office to check his mail, and slipped while

walking back to his city vehicle.      Ibid.   The Supreme Court found

his injury was not compensable, because "'an employee who deviates

from the temporal and spacial limits of his . . . employment tasks

for the sole purpose of engaging in a personal errand or activity

is simply not "engaged in the direct performance of duties"' as

required by the statute."       Id. at 475 (quoting Jumpp, 351 N.J.

Super. at 52).

     Straightforward application of the definition of off-premises

"employment" in N.J.S.A. 34:15-36 and Jumpp indicates Kamenetti

cannot claim workers' compensation.      When he was injured, he was

putting on his boots after showering.      He was not "performing his

. . . prescribed job duties at the time of the injury."          Jumpp,

177 N.J. at 482. Thus, he was not engaged in the direct performance

of duties assigned or directed by the employer," and was not "in

the course of employment" when he injured himself while putting

on his shoes.    N.J.S.A. 34:15-36.    His injury was non-compensable

because "the statute provides that [off-premises employees] are

to be compensated only for accidents occurring in the direct

performance of their duties."     Jumpp, 177 N.J. at 483.

     Nonetheless,    in   his   testimony,     Kamenetti   offered   two

rationales why "[a] shower is most important."             First, "[i]t

refreshes us, helps us be more alert."       Second, "if I'm delivering

                                   8                            A-0394-16T3
that afternoon or even early that morning, it's an appearance

issue because not only do I represent myself as an individual, but

I'm also representing the company," which could lose contracts if

he was "stinking" when he made a delivery.

     First, the "alertness" rationale did not support the award

because there was no testimony that Kamenetti took the shower

because he was getting drowsy behind the wheel.   Rather, Kamenetti

testified that he slept the night at the "mom and pop" truck stop,

awoke, needed a shower, and drove to the Flying J to shower.

     The JWC generally stated he "believe[d] that a truck driver

who stops to fuel and to shower is doing so so that he can continue

the safe and efficient performance of his duties."    However, the

JWC made no finding that Kamenetti was drowsy or otherwise unable

to efficiently perform his duties without the shower, nor was

there was any such testimony.

     Second, the "delivering" rationale did not apply because

Kamenetti was not making a delivery that day, or early the next

morning.   He was in Wyoming, and had several days before he had

to make the delivery in New Jersey.

     Given the inapplicability of those rationales, Kamenetti's

showering was indistinguishable from the showering of countless

on-premises employees in their homes every day before going to

work.   Many of those employees shower so they will be refreshed

                                9                           A-0394-16T3
and clean, and so they will not have body odor when they represent

themselves and their company.      Such employees are not "in the

course of their employment" if they slip in the shower or fall

while putting on their clothes or shoes.           N.J.S.A. 34:15-7.

Rather, they are engaged in personal hygiene and personal grooming,

each a quintessentially "personal errand or activity" excluded

from coverage by the statute and Jumpp.    177 N.J. at 475.   Nothing

in the statute indicates "off-premises employees are to be treated

differently from on-premises employees."    Id. at 483.

     It would not be consonant with the language or intent of the

1979 amendments to extend workers' compensation to cover employees

engaging in pre-work activities that will make them more refreshed,

efficient, alert, fragrant, or attractive during the work day,

such as bathing, eating breakfast, drinking coffee, exercising,

or dressing.   Treating these pre-work activities as covered would

contravene the requirement that the employee "engaged in the direct

performance of duties assigned or directed by the employer."

N.J.S.A. 34:15-36.    It would also ignore the "'clear legislative

mandate   sharply    curtailing   compensability   for   off-premises

accidents.'"   Jumpp, 177 N.J. at 482 (citation omitted).

     Thus, had Kamenetti stayed in a motel or truck stop with a

shower, showered there, and injured himself while dressing, he

would be equally ineligible for compensation as an on-premises

                                  10                          A-0394-16T3
employee who slept, showered, and dressed at home.      However, he

chose to stay at a "mom and pop" truck stop that had no showers,

and therefore had to go elsewhere to shower.    His choice does not

change the result.

     In Mangigian v. Franz Warner Assoc., Inc., 205 N.J. Super.

422 (App. Div. 1985), an off-premises employee was travelling

through New Jersey to survey stores for her employer; after she

returned to her motel and prepared reports, she walked to get food

and was struck by a car.       Id. at 424.     Despite the obvious

importance of food to sustain the employee, and its apparent

unavailability at her motel, we ruled she was engaged in "a purely

personal errand."    Id. at 428.     We opined: "the statute means

exactly what it says.   In order to obtain compensation for an off-

premises accident, the employee must demonstrate that his injuries

were sustained in the 'direct performance of [the] duties assigned

[to him] or directed by the employer.'"      Id. at 427 (alteration

in original) (quoting N.J.S.A. 34:15-36).      We held the employee

"was properly denied compensation because she was not engaged in

the direct performance of [assigned] duties."    Id. at 423.

     In Jumpp, both we and the Supreme Court relied on Mangigian.

177 N.J. at 475, 481.   Even though the off-premises employee had

to go out to get "supper," the Court agreed N.J.S.A. 34:15-36

"barred recovery because the activities were personal in nature

                                11                             A-0394-16T3
and   concerned   neither   'duties   assigned   nor   directed,'   nor

'business authorized,' by the employer."     Jumpp, 177 N.J. at 481-

82 (quoting Mangigian, 205 N.J. Super. at 427-28).        The statute

similarly bars recovery for Kamenetti's shower, even though he had

to drive to get it.

      In driving to get his shower, Kamenetti also drove Sangillo's

truck and its cargo toward their destination, but that did not

convert either his shower or his dressing afterwards into "the

direct performance of duties assigned or directed by the employer."

N.J.S.A. 34:15-36. Taking his morning shower remained "'a personal

errand or activity.'"   Jumpp, 177 N.J. at 475 (citation omitted).

When he was driving the truck toward the destination, and fueling

the truck, he was "performing his or her prescribed job duties,"

but "at the time of the injury" he had stopped performing those

duties "'to pursue a purely personal activity.'"       Jumpp, 177 N.J.

at 477, 482 (citation omitted).

      The JWC noted that "Kamenetti did not pull into the Flying J

to have a drink at the bar or play recreational video games," and

that any injury during those activities would have been "clearly

personal to the driver, and therefore, not compensable."      However,

Kamenetti's morning shower was equally personal to the driver and

his injury as a result was likewise not compensable.



                                 12                            A-0394-16T3
     The JWC emphasized Kamenetti chose to take his shower at the

Flying J.   The JWC found "[t]he very nature of the employment

dictates that the facilities offered by interstate truck stops be

used by interstate truckers."   The JWC "believe[d] that owners of

interstate trucking companies are fully aware of the degree to

which both their trucks and their drivers are dependent on the

frequent and efficient use of truck stops to facilitate the

movement of the goods they are transporting."    We do not dispute

the need to fuel and service such trucks at interstate truck stops.

But just as it would have been a personal activity if Kamenetti

had used the bar and video games also offered by such truck stops,

his use of the shower at the truck stop remained a personal

activity, and not a duty "assigned or directed by the employer."

N.J.S.A. 34:15-36.

     The JWC ruled "Kamenetti's actions in this case were easily

foreseeable and in many ways directed by Sangillo Trucking, who

'the Court finds,' directed [him] to utilize the services of the

major interstate truck stops." The JWC cited Kamenetti's testimony

that Sangillo wanted its trucks to be parked for the night at

well-lit large truck stops with security cameras, and that Sangillo

preferred he buy his fuel at a Love's truck stop if one was

available, because Sangillo had a contract with Love's to receive

a discount on fuel.   If a Love's was not available, then Sangillo

                                13                          A-0394-16T3
wanted the truck driver to fuel at a Flying J or a few other

nationwide truck stop chains.

      Accepting Sangillo directed Kamenetti to park and fuel the

truck at a large nationwide truck stop, Sangillo did not instruct

Kamenetti where or when to shower.          Kamenetti testified he made

the choices when to stop for fuel "[b]ased on the truck needs or

my personal needs, if I needed a shower."               He agreed "when you

decide to shower, when not to shower, those are your personal

choices along your trip."      Regarding his stop to take his morning

shower at the Flying J, he admitted he was "not under orders to

pull into that truck stop."      There was no evidence he was directed

to shower at the Flying J.       See Chisholm-Cohen v. Cty. of Ocean,

231 N.J. Super. 348, 352 (App. Div. 1989) (finding an employee,

encouraged by her supervisor to drive a company vehicle home to

eat and change before an off-premises assignment, was not directed

to do so); cf. Sager, 182 N.J. at 163-68 (finding the employer

directed the employee to go get dinner and return to work).

      Any argument Sangillo directed Kamenetti's choice to shower

is   further   weakened   by   the   fact   that   he    was   not   following

Sangillo's directions where to park or fuel.            He chose to park for

the night not at a large truck stop with cameras as Sangillo

wanted, but at a "mom and pop" truck stop.              He chose to fuel not

at a Love's as Sangillo preferred, but at a Flying J.

                                     14                                A-0394-16T3
       The JWC also ruled that "[t]ruck driving by its very nature

is a very unique endeavor.      There are very few types of employment

that demand an employee virtually reside in his or her place of

employment,     namely   the   truck."         The   JWC   found   compelling

Kamenetti's testimony that he was responsible for the truck and

the cargo from the time he left Sangillo's yard in New Jersey

until he returned, including "[i]f a tire blows," "if I get into

an accident," if "there is an issue with the load," and even "[i]f

I get hit" when asleep while the truck was parked at the truck

stop.    The JWC concluded "that the injuries sustained by Mr.

Kamenetti were distinctly associated with being an interstate

trucker and are therefore compensable."

       However, Kamenetti was not in his truck when he was injured.

Nor was he dealing with a problem with the truck, such as a blown

tire, an accident, a load problem, or being hit while parked for

the night.     He was taking his morning shower, not "performing his

. . . work responsibilities at the time of the injury," as Jumpp

and the statute require.       177 N.J. at 473.

       Nothing in our statute suggests or permits the creation of a

special rule for truck drivers that converts personal activities

into    work   responsibilities.         Our    Legislature    has    limited

compensation for all off-premises employees to injuries which

occur "when the employee is engaged in the direct performance of

                                   15                                 A-0394-16T3
duties assigned or directed by the employer."          N.J.S.A. 34:15-36.

Kamenetti was required to meet that off-premises standard in order

to   be   eligible   for   workers'    compensation.     See   Zelasko    v.

Refrigerated Food Express, 128 N.J. 329, 339 (1992) (reversing the

grant of benefits to the driver of a tractor-trailer because,

"[a]lthough the employer had required that petitioner be off the

premises, . . .       he was in no sense engaged in the           "direct

performance of duties assigned or directed by the employer.").

                                      IV.

      The JWC cited cases under the "minor deviation" exception,

which Kamenetti also invokes.          Before 1979, the minor deviation

rule was "broadly formulated."        Jumpp, 177 N.J. at 479.   "[D]uring

that period, the Court recognized that an on-premises employee

might not be 'actually working' at the time he or she was injured

but that in certain circumstances compensation nonetheless should

be available," such as if the employee stopped working "'to have

a smoke, or to get some fresh air, or to use the telephone, or to

satisfy other human needs incidental to his being at his place of

employment[, or] . . . . to satisfy their interest in a passing

parade or in a strange object or their curiosity generally.'"            Id.

at 478-79 (quoting Secor v. Penn Serv. Garage, 19 N.J. 315, 321

(1955)).



                                      16                           A-0394-16T3
      That broad rule "in effect considered personal habits or

errands, such as smoking or making a phone call, to be in the

'course of employment' even though, unlike the indispensable human

functions of eating and using the lavatory, employees need not

engage in such activities to perform their work duties adequately."

Id.   at   479.    It     also   resulted    in    compensation   for   injuries

occurring during "personal activities . . . off the employer's

premises, even though the injury was unconnected or only tenuously

related to the employee's job duties."                   Ibid. (citing, e.g.,

Hornyak v. Great Atl. & Pac. Tea Co., 63 N.J. 99, 102 (1973)

(allowing "compensation for injuries sustained during voluntary,

off-premises      lunch    breaks")).        The   JWC   mistakenly   cited   the

broadly-formulated pre-1979 version of the minor deviation rule.

      However, the Legislature in 1979 required the employee only

"be deemed to be in the course of employment when the employee is

engaged in the direct performance of duties assigned or directed

by the employer."           N.J.S.A. 34:15-36.           "Consonant with that

language, and aware of the Legislature's desire to limit the

availability of benefits for off-premises injuries, our courts

have since interpreted the statute to bar compensation for injuries

sustained in certain activities that prior to the 1979 amendments

were deemed within the scope of employment."                Jumpp, 177 N.J. at

480-82 (describing Ward v. Davidowitz, 191 N.J. Super. 518 (App.

                                        17                               A-0394-16T3
Div. 1983), Mangigian, and Chisholm-Cohen).        For example, we held

that    "off-premises   'lunch    break    accidents'   are   no    longer

compensable 'as a matter of law.'"        Ibid. (quoting Ward, 191 N.J.

Super. at 524).

       In Jumpp, our Supreme Court described and approved those

post-1979 cases, recognizing that their rationale "represents a

significant departure from our pre 1979 jurisprudence wherein the

minor deviation rule was applied broadly in off-premises cases."

Id. at 480-83.      The Court made clear that though "the minor

deviation rule was [not] eliminated by the 1979 amendments," it

was given a narrow new formulation to ensure coverage for off-

premises employees would be no greater than the narrowed coverage

for on-premises employees.       Id. at 483.

       The Supreme Court held: "In cases involving an alleged minor

deviation, the question is . . . whether that employee has embarked

on a personal errand that would have been compensable if carried

out by an on-premises employee."        Id. at 484.

            Off-premises employees enjoy the same ability
            to deal with certain basic needs enjoyed by
            on-premises employees such as phone calls to
            babysitters and physicians as well as coffee
            and lunch breaks.      Although the line is
            difficult to draw, those minor deviations are
            different in kind from shopping excursions
            during lunch hour or a visit to a travel agent
            to plan a vacation, even when the agent works
            in the same building as the employee seeking
            benefits.

                                   18                              A-0394-16T3
             [Id. at 483.]

     Addressing Jumpp's brief stop to check his mail while he was

on the road working, the Court ruled his "'deviation was no

different from the office worker who takes an afternoon break and

crosses the street to pick up his personal mail at the local post

office.'     Neither deviation would be compensable."                  Id. at 484

(quoting Jumpp, 351 N.J. Super. at 52).

     When Kamenetti left Sangillo's truck to go to take his morning

shower at the Flying J, he was engaged during the work day in a

personal errand normally occurring outside of working hours, like

"shopping excursions during lunch hour."                Id. at 483.     Kamenetti

spent approximately thirty minutes away from the truck taking his

morning shower and dressing.           That was not comparable to "phone

calls   to   babysitters     and     physicians"    -    brief   but    necessary

interruptions that do not physically remove the employee from his

place of work.      Ibid.    It was also not comparable to "coffee and

lunch breaks," which by definition are breaks for food and drink

which must occur during the workday.           Ibid.         Rather, it was the

postponed performance of a pre-work personal activity.

     Under    the   new,    narrow    formulation       in   Jumpp,   Kamenetti's

showering was not a minor deviation because it "would [not] have

been compensable if carried out by an on-premises employee."                   Id.


                                       19                                 A-0394-16T3
at 484.   If an on-premises employee had started his work day

without showering, and later left the work premises and gone into

a nearby building to take his morning shower, any injury there

would not be compensable.

     Kamenetti relies on a 1936 opinion in which a hotel dishwasher

finished his work and was injured after taking a shower in the

hotel washroom.   Taylor v. 110 S. Penna. Ave. Corp., 117 N.J.L.

346, 346 (Sup. Ct. 1936).   Taylor is distinguishable because the

dishwasher was "taking a shower bath on the premises of his

employer," because the work "cause[d] the accumulation of dirt and

perspiration" from which he was cleaning up, and because "[i]t was

customary for the employees to take the shower when leaving at

night and occasionally in the middle of the day, as cleanliness

was essential for their work in the kitchen."         Id. at 346-47.1

Thus, the court in Taylor ruled showering on the premises was "a

natural incident of the employment."   Id. at 347.2




1
  Moreover, we have subsequently stated the dishwasher in Taylor
was "on call" for further kitchen duties. See, e.g., Brooks v.
Dee Realty Co., 72 N.J. Super. 499, 506 (App. Div. 1962).
2
  By contrast, where an on-premises employee went to a company
event and returned to the work premises after his shift was over
to shower, we have held "[h]is decision to return to use the
employer's shower facilities was unrelated to his employment
duties and served his personal interests exclusively." Mule v.
N.J. Mfrs. Ins. Co., 356 N.J. Super. 389, 395-97 (App. Div. 2003).

                               20                             A-0394-16T3
     More fundamentally, the issue in Taylor was whether "cleaning

up, including the use of the shower, could fairly be said to be

an incident of the employment."       Id. at 347.     "[I]ncident of the

employment" is the standard for the "arising out of" portion of

N.J.S.A. 34:15-7's "arising out of and in the course of employment"

requirements.    Coleman v. Cycle Transformer Corp., 105 N.J. 285,

289-90 (1986).   "[T]he 'arising out of' portion [is] construed to

refer to causal origin, and the 'course of employment' portion to

the time, place, and circumstances of the accident in relation to

the employment."     Id. at 288 (quoting 1 A. Larson, Workmen's

Compensation Law, § 6.10 (1985)) (Larson).          "[E]ach test must be

'independently applied and met.'"      Id. at 289 (quoting 1 Larson §

6.10(a)).

     Here, we need not decide whether the "arising out of" test

was met, because Kamenetti failed to meet the "in the course of"

requirement.    As he was not "engaged in the direct performance of

duties assigned or directed by the employer," N.J.S.A. 34:15-36,

we need not consider whether "the risk of the occurrence was

reasonably incident to the employment," Coleman, 105 N.J. at 290.

Similarly, in considering Kamenetti's claim this was

            an alleged minor deviation, the question is
            not whether the off-premises employee was
            "satisfying a personal need, the completion
            of which is neither incidental to his . . .
            employment . . . nor beneficial to the

                                 21                              A-0394-16T3
            employer," but rather, whether that employee
            has embarked on a personal errand that would
            have been compensable if carried out by an on-
            premises employee.

            [Jumpp, 177 N.J. at 484 (emphasis added)
            (quoting Jumpp, 351 N.J. Super. at 52).].

     The JWC also cited Cooper v. Barnickel Enters., 411 N.J.

Super. 343 (App. Div. 2010).      In Cooper, when a company's plumbing

foreman went to the union hall to discuss a new job with a union

instructor, the instructor was busy, so the foreman took his coffee

break.    As there was no coffee at the union hall, he drove to get

coffee elsewhere and was in an accident.             Id. at 344-45.    Cooper

noted that "'[o]ff-premises employees enjoy the same ability to

deal with certain basic needs enjoyed by on-premises employees

such as . . . coffee and lunch breaks."          Id. at 347 (quoting Jumpp,

177 N.J. at 483).      Because the foreman "was on "his authorized

'coffee   break,'"    Cooper   ruled     that    "under   Jumpp,   accidents

occurring during coffee breaks for off-site employees, which are

equivalent to those of on-site workers, are minor deviations from

employment    which   permit     recovery       of   workers'   compensation

benefits."    Id. at 348.      Moreover, we stated it was appropriate

for the foreman to take his coffee break then because he was

"facing an extended wait to consult with an expert concerning a

work-related issue."     Ibid.



                                    22                                A-0394-16T3
     We find Cooper is inapposite.3            Unlike Cooper, Kamenetti was

not taking an authorized coffee break.               Instead, he was shifting

into the work day a purely personal pre-work activity, his morning

shower.    This was a personal errand, or activity, not a minor

deviation.

                                        V.

     The amicus curiae, COSH, attempts to justify compensation

under   the    "paid   travel    time,"      "employer-authorized      vehicle,"

"special      mission,"   "personal     comfort,"      and   "mutual   benefit"

exceptions.     However, COSH acknowledges those exceptions were not

argued before the JWC.           New Jersey courts "do[] not consider

arguments that have not been asserted by a party, and are raised

for the first time by an amicus curiae."              State v. J.R., 227 N.J.

393, 421 (2017). Thus, we "decline to address these issues because

they were not argued by the parties or considered by the trial

court   and    are   therefore    not     properly    before   this    [c]ourt."

Nicholas v. Mynster, 213 N.J. 463, 477 n.13 (2013).4


3
  Thus, we need not consider if Cooper is consistent the 1979
amendments' intent "to remove from compensability . . . off-
premises injuries sustained during lunch hour." Jumpp, 177 N.J.
at 477 (quoting Napier at 18); see id. at 479-80.
4
  In any event, "the Legislature laid to rest the mutual benefit
doctrine" in 1979. Sarzillo v. Turner Constr. Co., 101 N.J. 114,
119 (1985).    Moreover, it is dubious the remaining exceptions
cited by COSH apply here, given the facts and law discussed above.


                                        23                               A-0394-16T3
                                     VI.

      We recognize the Workers' Compensation Act "'is humane social

legislation.'"       Hersh,   217   N.J.   at   243    (citations   omitted).

Moreover, "we are mindful of the general rule that the Workers'

Compensation Act is to be liberally construed in favor of workers.

But we must remember that it is to be so construed in order to

effectuate the legislative purpose," including "the legislative

purpose in enacting N.J.S.A. 34:15-36."               Saunderlin v. E.I. Du

Pont Co., 102 N.J. 402, 419 (1986).              "'[W]e may not impute a

meaning to the statutory perimeters of employment contrary to the

plain language and intent of the [1979] legislation.'"               Chisholm-

Cohen, 231 N.J. Super. at 350 (citation omitted).

      Kamenetti failed to meet the more restrictive standard set

by   the   1979   legislation.      Therefore,    "[t]o   award     disability

benefits in cases like these would flout the Legislature's attempt

to solve . . . through the 1979 amendments" the excessive costs

caused by over-broad compensation for off-premises injuries only

tenuously connected to the employee's job duties.           See Saunderlin,

102 N.J. at 419-20; see also Jumpp, 177 N.J. at 476- 479.


See also Zelasko, 128 N.J. 336-39; Scott v. Foodarama Supermarkets,
398 N.J. Super. 441, 448-49 (App. Div. 2008); Walsh v. Ultimate
Corp., 231 N.J. Super. 383, 390-91 (App. Div. 1989). Indeed, when
Kamenetti cited an unpublished Texas decision involving a special
mission, the JWC remarked he did "not believe that the present
case is a special mission case."

                                     24                                A-0394-16T3
       We are also aware that some other states provide coverage for

traveling employee's bathing and dressing injuries.                2 Larson §

25.04 (2018).       However, bathing and dressing cases had caused

"[t]he greatest difficulty," and coverage has often been provided,

"not   on   the   abstract   merits   of   covering   falls   by    traveling

employees in bath tubs, but solely on the issue of achieving

consistent treatment for classes of employees."          Id. at 1-2.       Our

Legislature and Jumpp have provided us with a clear and binding

standard that avoids such difficulties and that requires off-

premises employees personal activities not be covered if not

covered for on-premises employees.

       Reversed and remanded.    We do not retain jurisdiction.




                                      25                              A-0394-16T3
