Geaney: Nurse's Back Injury Not Compensable After Cardio Club Activity

Monday, December 13, 2021 | 0

On Wednesday, the New Jersey Appellate Division affirmed the dismissal of a claim for serious back injuries filed by Meghan Ryan-Wirth, a school nurse, against the Hoboken Board of Education and the Pooled Insurance Program Joint Insurance Fund.

John H. Geaney

Petitioner, a school nurse, was injured participating in a morning cardio club activity with teachers and students. The case is important because it is one of the first to discuss the recent New Jersey Supreme Court decision in Goulding v. NJ Friendship House.

The key facts are that Ryan-Wirth filed a claim petition and motion for medical and temporary disability benefits seeking an order compelling the Hoboken Board of Education to pay for her fusion surgery as well as temporary disability benefits. 

Capehart Scatchard defended the Hoboken Board of Education and the Pooled Insurance Program. Shareholder Andrea Schlafer successfully handled the trial and the appeal.  

The facts of the case were unusual. Petitioner, a full-time school nurse at the Hoboken Middle School, applied for a position as a student monitor for some extra income. The service was known as the A.M. Care Program for students who needed to arrive early to school.

Teachers and other staff who provided monitoring services received a stipend of $30 per day. Petitioner arrived on Sept. 10, 2019, but claimed to have received very little instruction on her first day. The next day, she came to school early with the intention of participating in the A.M. Care Program. However, she was informed that there was no need for more monitors that day.

The facts were sharply disputed at this point in the case. Ryan-Wirth testified that upon entering the school she was greeted by the principal, who was dressed in workout clothes. She claimed the principal informed her that there was no need for any additional A.M. Care Program monitors that morning, but she was welcome to participate in the cardio club.

Ryan-Wirth maintained that she felt pressured to participate in the cardio club because the principal was her boss. She also claimed that she was never informed that she would not be paid for participation in the cardio club, which was next to the cafeteria where the A.M. Care Program was located. She said she changed into gym clothes and then went into the cardio club.

Ryan-Wirth suffered serious back injuries on Sept. 11, 2019, while pulling a car tire in a relay race, falling backward on her rear end. She was taken by ambulance to the hospital and ended up having major spine surgery.

Witnesses for the board disputed petitioner’s version. The principal testified that he saw petitioner that morning wearing workout attire before participating in the cardio club. He told her that there were already enough monitors for the A.M. Care Program but that she could attend the cardio club if she wanted. He added that petitioner would not be paid.  

According to the program website, the cardio club had a goal of infusing math into fitness activities for students. For example, the website described a recent session in which students ran outside and “calculated pace and clocked sprint times.” Some runs were mapped using GPS technology, and students could monitor their heart rate, according to the website. 

There were other witnesses who testified in the case. Ryan-Wirth called a teacher to testify on her behalf, but that testimony harmed her case. According to the teacher, it was petitioner who asked the teacher if she was going to participate in the cardio club, and petitioner said it looked like fun to her. This teacher also said that she thought cardio club was completely voluntary and would not be a paid activity.

On cross-examination, petitioner admitted that she had a personal motive for wanting to participate in the cardio club. She said that six weeks after giving birth, her doctor cleared her to exercise. She went for walks and to the gym twice a week. After giving birth, she participated in a challenge to lose 30 pounds by Christmas for a cash prize.

Petitioner’s attorney maintained that petitioner was on school grounds on a workday when she was injured, and she felt pressured to participate in the cardio club. The judge of compensation ruled against petitioner and held that her injury did not arise from work. 

Petitioner appealed. The Appellate Court first reviewed the recent decision in Goulding where a cook volunteered to participate in a family fun day and was injured while cooking for guests and employees. In that case, the Supreme Court ruled that Kim Goulding’s injury was not a recreational activity because she was doing the same work she always did during the week and because she did not participate in any of the games or activities.

The Appellate Division believed that Ryan-Wirth was not participating in a recreational activity under NJSA 34:15-7 because the cardio club was not really a social or recreational activity, given its emphasis on learning for students. But as to petitioner, the Appellate Division held that the activity did not arise out of work. The court said:

The record demonstrated that the petitioner is a school nurse, not a teacher. Her job duties were to perform health screenings, treat illnesses, make referrals to primary care providers and monitor immunizations. She acknowledged she was not performing any of her duties as a school nurse at the cardio club … Petitioner was not monitoring, supervising, instructing or otherwise assisting the student participants. Petitioner’s participation in the cardio club was limited to engaging in cardiovascular exercise. It was not a “regular incident of employment” as a school nurse within the meaning of NJSA 34:15-7.

The Appellate Court also endorsed the finding of the judge of compensation that petitioner’s motivation was very much personal in exercising and attempting to lose weight. The judge had found as follows: 

“he also said that she had a personal health goal to lose 30 pounds by Christmas, and by doing so she would earn $661. She admitted that there was a personal stake in getting healthy and that she enjoyed working out. She went on to say that she worked out whenever she could, even engaging in 5k races while pregnant and after her pregnancy came to term ... She thought cardio club would be ‘fun’ and chose to do it.”

The court also made short shrift of petitioner’s argument that she was compelled to participate. The Appellate Court focused on the several lay witnesses who testified that the cardio club was voluntary, and employees were not reprimanded for not participating. The court found that there was no hint of compulsion.

In the main, this case is consistent with Goulding in finding that the overall activity itself  — the cardio club — was not a recreational or social activity, since student learning was primary. The Appellate Division seems to be saying that the cardio club was really about education as to students and perhaps as to teachers who work with them. 

Similarly in Goulding, the Supreme Court found that there was a business purpose to the Saturday afternoon family fun day for the employer. That event also was not considered recreational or social under NJSA 34:15-7. To win a recreational or social activity claim, the employee must prove a benefit to the employer beyond the improvement of health and morale. 

In both cases, the court felt that this test did not apply because the overarching purpose of each activity was not really recreational or social. 

Yet Goulding’s injury was found compensable, while Ryan-Wirth’s was not. Neither was found to be participating in a recreational or social activity but one won, and one lost.  How do we square the two results?

The Appellate Division concluded that one difference between the two cases was that Goulding was doing her regular job as a cook at the family fun day. Ryan-Wirth was not doing her regular job as a school nurse. The Supreme Court went so far as to say that Goulding was actually working at the event, yet was not paid. She volunteered her time. 

The differences are subtle, but it is clear that Ryan-Wirth lost because the court saw no connection between her activity and her job as a nurse and because of her personal interest in exercise.

In the end, the case was not about the recreational or social activity statute but rather a straight analysis of the “arising out of work” standard. Neither the judge of compensation nor the Appellate Division saw how petitioner’s injury arose from her work as a nurse or a monitor in the A.M. Care Program. The decision makes sense for the reasons stated by both the judge of compensation and the Appellate Division.

What is left of the statutory Section 7 test? It seems to be much more restricted now to activities where there is no business purpose, such as a softball game after work between employees of one company against another company. That would be an example of a statutory recreational activity that would be found not compensable because there would be no way to argue that a softball game between two law firms, for example, would promote a benefit to the employer beyond the improvement of health and morale.

John H. Geaney is an attorney, executive committee member and shareholder with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.