NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Petitioner Mary Patterson appeals from the dismissal after trial of her petition seeking workers' compensation benefits from her employer, respondent The Atlantic Club. We affirm.
We glean the following circumstances from the trial record. On September 22, 2010, Patterson was at Atlantic Club's health club premises, where she worked as a personal trainer. She had become a part-time employee approximately twenty days prior to the accident at issue. She trained clients from 6:00 a.m. until 7:00 a.m., from 8:00 a.m. to 11:00, and from 12:00 p.m. until 3:00 p.m. It is not disputed that Patterson was injured at approximately 11:15 a.m., and that her 11:00 a.m. client, Jennifer Grace, never appeared for her session. Patterson claims she was returning exercise bands she had intended to use with her 11:00 a.m. client when she tripped, fell, and broke her wrist. The employer asserts to the contrary, that Patterson was herself working out when she was injured.
A time card was introduced into evidence showing that petitioner punched out of work at 11:00 a.m. Patterson testified that she did not punch out as she was waiting for her client. She acknowledged that when acting as a personal trainer, she is required to wear a black trainer shirt, and that she was not wearing the uniform at the time of the accident. Patterson explained that she had taken off the trainer shirt because of the heat.
The workers' compensation judge, who did not find Patterson to be a credible witness, concluded that although she had not actually physically punched out as of 11:00 a.m., that she had no appointment scheduled, was working out herself, and on the premises for her own purposes, unrelated to her employment. In support of her claim, Patterson presented the testimony of the former manager, Robert Casella, an individual whom the employer fired some time after this event because he submitted time cards for compensation for personal training sessions with a person who was deceased. Casella testified that he altered Patterson's time card, at the employer's request, to indicate that she was punched out and not working at the time she was injured. Because of significant discrepancies in his testimony, the workers' compensation judge did not find him to be a credible witness either. He said Casella had "no credibility with this court whatsoever. As far as the court is concerned, he was caught in a lie about the events of that day when he was shown that the card was not changed for approximately two weeks."
The employer presented the testimony of Kathy Guibord, the general manager, as well as that of Deborah Meyer, one of Patterson's supervisors. Guibord testified that although Patterson had not punched out at the time the accident occurred, Patterson told her that she was working out on her own and was not training anyone when the accident occurred. Both noticed that she was in her own workout clothes when injured, and not in the black trainer's shirt she would have been wearing had she been working with a client.
Although the workers' compensation judge found that when the accident occurred, Patterson was not punched out, he viewed that fact as insignificant. Because he did not find Patterson and her witness to be credible, and he therefore concluded that she was not working when she fell. He considered the detail that she was out of uniform to be significant, observing: "she changed out of her uniform and into her personal clothes because she was on her personal time and no longer working." He therefore held that Patterson had not met her burden of proof by a preponderance of the credible evidence and dismissed the petition.
On October 12, 2012, after his initial decision rendered from the bench on August 31, 2012, the workers' compensation judge issued a written amplification pursuant to Rule 2:5-1(b). The judge restated:
that there was insufficient credible evidence presented by the petitioner to establish that her injuries sustained on September 22, 2010[,] arose out of and in the course of her employment. The court believes that at the time of the accident the credible evidence establishes that the petitioner was at her place of work but on her own time.
In reaching this decision, the workers' compensation judge relied on two cases, Sparrow v. La Cachet, Inc., 305 N.J.Super. 301 (App. Div. 1997), and Zahner v. Pathmark Stores, Inc., 321 N.J.Super. 471 (App. Div. 1999). In both, an employee was injured while at her place of employment but not at a time that she was actually working. The judge noted that in Sparrow, after ending her own job responsibilities, the employee requested a facial and was burned in the process by hot water. Despite the fact that the injury occurred at the workplace, the employer was not responsible for workers' compensation because the employee was on her own time. Sparrow, supra, 305 N.J. Super. at 307. In Zahner, a supermarket employee had punched out and gone shopping for herself. She slipped and sustained injuries. Like in Sparrow, that the employee's injuries occurred while at the work place was not dispositive. The employee was not entitled to compensation because she was not working at the time of the accident. Zahner, supra, 471 N.J. Super. at 481.
The workers' compensation judge considered the cases to be factually analogous with this case. Patterson, although at the workplace, was injured when no longer actually fulfilling any job responsibilities. She remained at the workplace to engage in an activity that was of benefit to her and not her employer.
On appeal, Patterson raises the following points:
I. APPELLANT IS ENTITLED TO WORKER'S COMPENSATION BENEFITS BECAUSE AT THE TIME OF HER ACCIDENT SHE WAS ON THE PREMISES OF HER EMPLOYER AND WAS ENGAGED IN ACTIVITIES THAT BENEFITTED HER EMPLOYER.
II. APPELLANT IS ENTITLED TO WORKER'S COMPENSATION BENEFITS BECAUSE HER ACTIONS WERE NOT RECREATIONAL.
III. APPELLANT IS ENTITLED TO WORKER'S COMPENSATION BENEFITS BECAUSE SHE ENGAGED IN AN ACTIVITY THAT WAS MUT[U]ALLY BENEFICIAL TO HER EMPLOYER.
We reject these contentions of error and affirm based on the workers' compensation judge's oral and written opinions. We add only the following brief comments.
Appellate review of a decision rendered by a judge of compensation is limited to determining "whether the findings. . . could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to [the judge's] expertise in the field and his opportunity of hearing and seeing the witnesses." De Angelo v. Alsan Masons, Inc., 122 N.J.Super. 88, 89-90 (App. Div.) (citing Jackson v. Concord Co., 54 N.J. 113, 117-18 (1969); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)), aff'd o.b., 62 N.J. 581 (1973). We therefore do "not substitute [our] own judgment for the agency's even though [we] might have reached a different result." Raso v. Ross Steel Erectors, Inc., 319 N.J.Super. 373, 380 (App. Div.) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)), certif. denied, 161 N.J. 148 (1999).
It bears repeating that our review of a workers' compensation decision takes into account the judge's opportunity, after hearing the witnesses, to assess their credibility. See Close, supra, 44 N.J. at 599. Furthermore, "[t]he burden of showing that the agency's action was arbitrary, unreasonable or capricious rests upon the appellant." Raso, supra, 319 N.J. Super. at 380 (citing Barone v. Dep't of Human Servs., 210 N.J.Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)).
Patterson has simply not met her burden. After our review of the testimony, we do not think the judge of compensation erred in determining that Patterson was not working at the time she was injured. She was not wearing the required uniform while she alleged she was waiting for her client. Guibord testified Patterson told her immediately after the incident that she had been working out on her own when she fell and broke her wrist. Given the judge's credibility findings, which we review deferentially, his ultimate conclusion does not appear to be arbitrary, capricious, or unreasonable.
On appeal, Patterson makes an argument not presented to the workers' compensation judge, namely, that the activity in which she was engaged was "mutually beneficial to her employer." Because this point was not raised before the workers' compensation judge, it is not properly raised at this time and we will not consider it. See Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, although both of the employer's witnesses agreed that employees are permitted to work out regularly, and said they had done so themselves, the only witnesses who testified that employees were affirmatively encouraged to work out at the club in order to increase the employer's business were Patterson and Casella. However, they were not found to be credible witnesses. Even if we were inclined to entertain the argument, the proofs do not support the claim.
Affirmed.
