Back Injury To School Nurse Found Not Compensable Where She Participated in Cardio Club Activity Before School

On December 8, 2021, 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. 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 cases to discuss the recent New Jersey Supreme Court decision in Goulding v. NJ Friendship House, 245 N.J. 157 (2021).

The key facts are that Ms. 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 September 10, 2019 but claimed to have received very little instruction on her first day. The next day on September 11, 2019, 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.  Ms. 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 that she was welcome to participate in the Cardio Club. Ms. 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 that she changed into gym clothes and then went into the Cardio Club.

Ms. Ryan-Wirth suffered serious back injuries on September 11, 2019, while pulling a car tire in a relay race, falling backwards 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 this case.  Ms. 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 she went to the gym twice a week. After giving birth, she participated in a weight loss challenge to lose 30 pounds by Christmas for a cash prize.

Petitioner’s attorney maintained that petitioner was on school grounds on a work day when she was injured, and she felt pressured to participate in the Cardio Club.  The Judge of Compensation ruled against petitioner and held that petitioner’s 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 Ms. 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 Ms. Ryan-Wirth was not participating in a recreational activity under N.J.S.A. 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 N.J.S.A. 34:15-7.

The Appellate Court also endorsed the finding of the Judge of Compensation that petitioner’s motivation was very much a personal one in exercising and attempting to lose weight.  The Judge of Compensation had found as follows:  “She 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 those students.  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 N.J.S.A. 34:15-7.  To win a recreational or social activity claim, the employee must prove a benefit to the employer beyond improvement of health and morale.  In both cases the court felt that this test did not apply because the over-arching purpose of each activity was not really recreational or social. 

Yet Ms. Goulding’s injury was found compensable, while Ms. 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 the Ms. Goulding was doing her regular job as a cook at the Family Fun Day.  Ms. Ryan-Wirth was not doing her regular job as a school nurse. The Supreme Court went so far as to say that Ms. Goulding was actually working at the event.  Yet Ms. Goulding was not paid: she volunteered her time.  The differences are subtle, but it is clear that Ms. 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 an after-work softball game 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 improvement of health and morale.