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JESSE COOPER, SR.,

Petitioner,                                                                                          

                                                                                                          DECISION

v.        

BARNICKEL ENTERPRISES, INC.,

Respondent.

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B E F O R E :               HONORABLE BRADLEY W. HENSON, SR.

                                    JUDGE OF COMPENSATION

A P P E A R A N C E S :

         Mark S. Kancher, Esquire

THE KANCHER LAW FIRM, L.L.C.

Grove Professional Center

100 Grove Street

Haddonfield, NJ 08033                                                                       

For the Petitioner

          CHRISTINE M. KERR, Esquire

          New Jersey Manufactures

          310 Sullivan Way,

          Cn 128

          West Trenton, NJ 08628

           For the Respondent     

Procedural History and Factual Findings

The motion to reconsider was granted by this Court to allow the consideration of subsequent case law specifically Yakup Acikgoz v. NJ Turnpike Authority 398 N.J. Super. 79 (App. Div. 2008) and Dale Scott   v.  Foodarama   Supermarkets 398 N.J. Super. 441 (App. Div. 2008) which were both decided subsequent to this Court’s original Bench decision after a bifurcated trial limited to liability only. I note here that Respondent conceded at oral argument that factually these two cases not particularly relevant, but submitted them since “They stress the premises rule, they stress the Jumpp case, and they reiterate that there are just a couple of exceptions, and this is not one of them.” The parties had stipulated the total disability of Mr. Cooper during the bifurcated trial.

The Petitioner, Jesse Cooper, Sr., is 54 years old.  He was a union pipe fitter and plumber, and member of UA Local 322 in Winslow Township, N.J.  His gross earnings for 2001 were $74,000 and $58,000 for 2002. Therefore, the parties agreed that the petitioner would be subject to maximum rates for 2003.

In February of 2003, Mr. Cooper was employed by Barnickel Enterprises, Inc., t/a Atlantic Mechanical (“Atlantic”) as a foreman on their mechanical contracting jobs.  He was responsible for setting up jobs, ordering supplies and job site material delivery. As foreman, he was responsible for supervising other Atlantic employees.  Mr. Cooper was responsible for all blueprints and any other information required for complete job compliance. 

            Mr. Cooper was given a pick-up truck owned by Atlantic to use in conjunction with his work.  This pick-up truck was needed   to get to and from each of Atlantic's work sites, as well as, to and from his home.  The truck was also used to transport materials, equipment and supplies to the work sites.   He did not have a permanent workplace and went to work at whatever site Atlantic dispatched him.  He was clearly authorized to use the truck to get to and from each work site from his home.

            Mr. Cooper's arrangement with Atlantic for his work schedule was flexible. He did not have to work any particular hours in a week, so long as he fulfilled his respective assignment.  He was free to work on a Saturday or Sunday (or a holiday), for which hours he was paid and which hours he could apply to that week's total of 40 hours.  He was trusted sufficiently by Atlantic that he needed no supervision; nor did he need anyone to corroborate his working hours.  Due to his proven work ethic, he was given a great deal of independence in his work. I note here, that respondent did not provide any witness to contradict the testimony, of the petitioner, that his coffee break was paid.

            In February 2003, Atlantic was performing new work for Egg Harbor Township consisting of the installation of an in-ground heat pump system at the municipal building.  The job was to begin on Monday, February 10, 2003, when the other sub-contractors and general contractor would be on site for a job meeting.  On February 8^th,  Mr. Cooper had gone to Egg Harbor Township to view the site and obtain the prints for the job, so that he could take them home and do his “take-offs” and order needed materials on Monday. He also needed to pick up a particular code book  referenced in the general contractor's set of blueprints for the Monday meeting as well.  Mr. Cooper's need for the book was related to the type of job, an in-ground heat pump system, with which he was not entirely familiar.  Mr. Cooper wanted to avoid any code violations or any other confusion on the job relative to other subcontractors and prevent mistakes that could cost his employer significant money. To obtain the book and the information regarding the type of job, Mr. Cooper had to speak to another union employee who taught at the Union Hall on Saturdays in Winslow Township.  He drove the company truck from the Egg Harbor site to the Union Hall on Route 73 in Winslow.  When he arrived at the Union Hall, the individual whom he needed to see that day, John, was teaching a class, and could not be disturbed.   Knowing that the class would end shortly, Mr. Cooper decided to take his regularly paid coffee break. Mr. Cooper planned to drive for coffee at a local store whose coffee he favored and then return immediately to the Union Hall.  He drove Atlantic's pick-up truck onto Route 73 and within a very short distance, a car crossed the center line of this four-lane highway and struck Mr. Cooper head-on, permanently and totally disabling him.

DECISION

In reconsidering whether Mr. Cooper's injuries arose out of and in the course of his employment this Court will address the following  issues:

1.         Whether this Court was correct in applying the minor deviation rule and alternatively;

2.         Whether the accident that occurred, during the paid coffee break, falls under the definition of employment pursuant to N.J.S.A. 34:15-36.

Original Bench Decision  applying the Minor Deviation rule.

During the bifurcated trial, the Respondent asserted that Mr. Cooper was not going to get coffee, but instead was on his way to aid his fiancée, and therefore he was not in the course of employment at the time of the accident. In support of this version of the facts, the Respondent offered the testimony of  Ms. Morgan,  the Petitioner's former fiancée. Ms. Morgan testified that she had fallen at the mall, and that she called Mr. Cooper to take her to the emergency room shortly before his accident occurred. Clearly, this testimony directly contradicts the testimony of Mr. Cooper.  In determining that it is the Petitioner's testimony that is the more consistent, probable, and believable as to the events and his activities on February 8, 2003.  I note here my findings with regard to Ms. Morgan’s testimony.

• Ms. Morgan was in essence a paid witness. The Respondent's insurer's having paid for her flight to and from Columbus, Ohio, car rental expense, as well as, her lost time from her employment.
• Ms. Morgan was a biased witness because Mr. Cooper had moved from Ms. Morgan's house about a month before the accident, and they formally terminated their engagement in June of 2004.
• Ms. Morgan’s testimony in Court is inconsistent with her sworn testimony in May of 2004, about 15 months after the accident, where she testified under oath, that at the time of Mr. Cooper's accident, she was already at the emergency room of a local hospital.
• Ms. Morgan's cell phone records for February 8, 2003, were introduced in evidence, and they are replete with local calls before and after Mr. Cooper's accident.  Ms. Morgan first testified that she called “someone” to take her to the emergency room after Mr. Cooper's accident on her cell phone.  However, when she couldn't find the phone number of the person whom she called (and whom she didn't name) after the accident to take her, she changed her version of events and said instead that she used another phone to make that call, the records of which she did not have at trial.  
• It was clear from her testimony that Ms. Morgan considered her own injury to be a non-emergent event.  It is highly unlikely that, given her own belief that she did not need immediate emergency care that Mr. Cooper would have simply dropped everything, while working, to drive an hour to get to her to take her to a hospital.  Moreover, if her injury were emergent, she would not have waited for him to take her.
• Ms. Morgan testified that after she called Mr. Cooper from the Moorestown Mall, and called him again after driving herself home from the mall. Her testimony here does not ring true, since she was clearly able to drive and could have driven herself to the emergency room instead of going home. The difference in distance from the mall to her home and the mall to the emergency room being inconsequential.
• Her testimony was replete with “I don't recalls,” “I think,” “to the best of my recollections,” and the other qualifying language that one uses under oath to attempt to disguise one's lack of real, hard knowledge.

Therefore, based upon these findings regarding Ms. Morgan’s testimony, I find that it is more probable that Mr. Cooper told her that which he testified:  that he would actually come to see her, after he was finished with his job duties that day.  His testimony on direct, cross, re-direct, and rebuttal examinations was definite, direct, concise and consistent. He testified that he would be there between 1:00 and 1:30 p.m. because he had to go to the Union Hall to get the book he needed to do his job.  Ms. Morgan has either convinced herself that she heard a version of their conversation  that she wanted to hear, that is, that  Mr. Cooper was coming immediately to her aid; or she wants to remember it that way, intentionally or unintentionally.  On balance, it is the Petitioner's testimony that is the more consistent, probable, and believable as to the events and his activities on February 8, 2003.

Therefore, for the reasons previously stated, I reaffirm my original factual finding that Mr. Cooper was taking his regular paid coffee break at the time of the accident and was not on his way to aid Ms. Morgan.

The respondent now asserts that it does not matter that Mr. Cooper was not going to aid Ms. Morgan, but that the paid coffee break is not included in the definition of employment pursuant to  N.J.S.A. 34:15-36.  The Respondent relies upon the Supreme Court case of  Jumpp v. City of Ventnor, 177 N.J. 482, 483 (2003). In Jumpp  a city employee, whose daily assignment required that he visit various sites within the city, stopped at the post office, with his supervisor's permission, to pick up his personal mail, fell and was injured.  The Court found that Jumpp was on a personal errand and, therefore, not entitled to Workers' Compensation benefits.   N.J.S.A. 34:15-36 requires a finding that the off-premises worker is performing his or her work responsibilities at the time of injury, in order to establish compensability.   However, the court also ruled that compensability of accidents that occur during minor deviations by an employee, whether off-premises or on-premises, survive the 1979 amendments to the Act.  Justices Long and Zazzali dissented arguing that the post office stop was a minor deviation for this off-premises employee, not unlike an on-premises employee who is injured while walking across an office to retrieve a piece of personal mail.

The Jumpp Court held:

“Nor do we suggest that the minor deviation rule was eliminated by the 1979 amendments. 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.”

In determining that Mr. Cooper was injured in the course of his employment in my original bench decision, I held that the deviation was minor and therefore not violative of the Jumpp standard.  In Jumpp,  Justices Long and Zazzali cited the case of  Secor v. Penn Service Garage, 19 N.J. 315, 319 (1955),  as formulating the minor deviation rule:

Despite occasional suggestions to the contrary, it is now well settled in our State and elsewhere that an employee is not deprived of the benefits of the Compensation Act simply because he was not actually working when the accident occurred. He may have stopped work to have a smoke, to get some fresh air, to use the telephone, or to satisfy other human needs incidental to his being at his place of employment; it is clear that injuries, which occur during such minor deviations, are generally sufficiently related to the employment to call for compensation. Similarly, employees may stop work to satisfy their interest in a passing parade or in a strange object or their curiosity generally; here Larson suggests that so long as the deviation is minor it should be disregarded.

Mr. Cooper's particular factual circumstances of driving a mile or two for coffee do not defeat compensability. Mr. Cooper started his workday from his home, not an office. He drove to the initial job site. He then drove an additional 20 miles or so, to the Union Hall, for a meeting with an instructor concerning the same project. He arrived at approximately 11:15 A.M. Since the instructor would not be available until 12:00 noon, the petitioner took his regular paid coffee break and went to get some coffee up the road at a place he knew had good coffee.

Mr. Jumpp, unlike Mr. Cooper, was stopping at the post office for purely personal reasons, was not on a paid break, and was not far from his regular place of employment. Mr. Cooper, on the other hand, had traveled 20 miles for a special meeting with an Instructor that was absolutely necessary in order for him to prepare for the upcoming General Contractor meeting on Monday.  Mr. Cooper was doing what he was supposed to be doing, he was preparing for a very important general contractor meeting. The paid coffee break, under these circumstances, is completely different than the purely personal errand of   Mr. Jumpp. Mr. Cooper’s  insubstantial deviation, is exactly the kind of brief activity which, if embarked on by an inside employee working under set time and place limitations, would be compensable under the personal comfort doctrine. For instance, while crossing a street may seem to be a more conspicuous deviation than crossing a room, there is really no difference in principle between the trucker, whose work-place is the street, who drives down the road for a cup of coffee, and an inside worker who goes down the hall for a cup of coffee.

Therefore, for the aforementioned reasons, I reaffirm my original bench decision that the ruling in Jumpp would not preclude compensability, since the coffee break was sufficiently related to his employment and thus a minor deviation, not precluded by the 1979 amendments or the holding in the Jumpp case.

Alternative Decision applying N.J.S.A. 34:15-36

Alternatively,  N.J.S.A. 34:15-36 provides in part:

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 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.  Travel by a policeman, fireman, or a member of a first aid or rescue squad, in responding to and returning from an emergency, shall be deemed to be in the course of employment.

Clearly, the Legislature, pursuant to N.J.S.A. 34:15-36, intended to limit employment to an employer’s place of business and to preclude employment while driving to and from work. This statute addresses the principle known as the going and coming rule and reined in Court created exceptions to the rule.

The going and coming rule precludes an award of compensation benefits for injuries sustained during routine travel to and from an employee's regular place of work.  This doctrine rests on the assumption that an employee's ordinary, routine, day to day journey to and from work, at the beginning and at the end of the day, neither yields a special benefit to the employer, nor exposes the employee to risks that are peculiar to the industrial experience. However, the basic going and coming rule became diluted over the years by a series of exceptions that all but "swallowed the rule."   Therefore, one of the purposes of the 1979 amendments was to "establish relief from the far-reaching effect of the "Going and Coming Rule" decisions by defining and limiting the scope of employment."  Senate Labor, Industry and Professions Committee Joint Statement to Senate No. 802 SCS and Assembly No. 840 ACS, November 13, 1979.  

However, the statute does define employment for off-premises employees in certain circumstances.   N.J.S.A. 34:15-36 provides: “…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.”  This statutory language is referred to as the "special-mission" exception to the going and coming rule.

Clearly, Mr. Cooper was on a special mission preparing for the Monday general contractors meeting. He had visited the site and then drove an additional 20 to 30 miles to obtain a code book referenced in the blueprints and to discuss the heat pump system with the instructor at Union Hall. The record is clear that this particular job was not an ordinary job and required a special trip in order for Mr. Cooper to be prepared for the Monday meeting. Based on these facts, I find that Mr. Cooper was on a special mission that was authorized  by his employer. Mr. Cooper was required to be away from his conventional place of employment, the Egg Harbor job site, and he was actually engaged in the direct performance of employment duties. The mere fact the he was on a paid coffee break at he time of the accident, does not alter the fact that he was on a special mission for the direct benefit of his employer.

N.J.S.A. 34:15-36 also defines employment to include employee paid travel time by an employer for time spent traveling to and from a job 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. 

Clearly, Mr. Cooper’s workday necessitated travel from the regular worksite to the Union Hall in the direct performance of his authorized duties. He was on the clock while using the employer authorized work truck. This was travel time to and from a distant job site necessitating the authorized use of a vehicle on business authorized by [Atlantic].   In  Sprigg v. Telsource Corporation, (Div. of Workers Compensation, May 25, 2005),  the Workers’ Compensation Judge held “…one cannot separate out the need to travel to and from a distant job site in order to perform the authorized work of the employer at that site.”  Citing  Ehrgott v.Jones, 208 N.J. Super. 393 (App. Div. 1986); Mahon v. Reilly’s Radio Cabs, Inc., 212 N.J. Super. 28 (App. Div. 1986).  It is undisputed that the truck was owned by Mr. Cooper’s employer and he was authorized by his employer to use same in the performance of his job duties.

 Furthermore,  I find that everything that Mr. Cooper did that day was authorized by his employer. Mr. Cooper testified that he was told to be ready for the Monday meeting and to do what he needed to do. This included a trip to the Egg Harbor work site and ultimately to the Union Hall in Winslow.  It is of no relevance that his employer did not specifically say go to the Union Hall; that authority was clearly given to the petitioner when he took the job. I find that Mr. Cooper was  expected to do what was necessary to be prepared for the Monday meeting, and this unquestionably included the decision to go to the Union Hall in Winslow.  Considering all the particular factual circumstances of his employment Mr. Cooper was clearly authorized, by Respondent, to use the Respondent’s vehicle as he did, including the use of same to take his paid coffee break.

Conclusion

I must remain ever mindful that the Workers’ Compensation Statute is humane social legislation that must be liberally construed in order that its beneficent purposes may be accomplished. When viewing this case, pursuant to that standard, I find that the totality of the particular factual circumstances surrounding Mr. Cooper's work activities and injuries sustained on February 8, 2003 support this Court’s initial finding  of compensability, as well as, the alternative findings herein.

Petitioner’s Counsel shall submit the appropriate form of Order consistent with this decision and all stipulations.

Bradley W. Henson, Sr., J.W.C.                                                               October 20, 2008