BEFORE:

            HONORABLE EMILLE R. COX
            Judge of Compensation

APPEARANCES:

            SCHIBELL & MENNIE, L.L.C.
By:       KENNETH W. THAYER, ESQ.
            For the Petitioner

FREEMAN BARTON HUBER & SACKS
By:       MICHAEL HUBER, ESQ.                                                                                                       
            For the Respondent

The above-captioned matter comes before this Court on Respondent’s motion to dismiss Petitioner’s Claim Petition for lack of jurisdiction.  Specifically, Respondent contends that Petitioner’s accident occurred while Petitioner was on her way to work and is therefore not compensable pursuant to N.J.S.A. 34:15-36.   Conversely

Petitioner, citing Ohio Casualty Group v Aetna Casualty & Surety Company, 213 N.J. Super. 283 (App. Div. 1986), Nebesne v Crocetti, 194 N.J. Super. 278 (App. Div. 1984), and Zelasko v Refrigerated Food Express 128 N.J. 329, raises an intriguingly novel argument.   She contends that, because she earned her wages during specific blocks of time during the work day and her accident occurred during one such paid working period, she is entitled to compensation benefits under either the “special mission” or “travel time” exception as articulated in the above referenced cases.  The cases cited by Petitioner offer no support for her contention that she qualifies for workers’ compensation benefits under either exception.

To prevail in a claim for workers’ compensation, a petitioner must prove that his/her injury arose out of and in the course of employment.  N.J.S.A. 34: 15-7.  This routinely requires our review of the application of the “going and coming rule” as defined within the 1979 amendments to the Workers’ Compensation Act, N.J.S.A. 34:15-1 et seq. and the applicable body of case law.  See Livingstone v Abraham & Straus, Inc., 111 N.J. 89 (1988), Chisolm-Cohen v County of Ocean, 23 N.J. Super 348 (App. Div.1989).

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

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 ……………………………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 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. …………………………………

The “going and coming rule” is intended to preclude the award of workers’ compensation benefits for accidental injuries sustained during routine travel to and from an employee’s regular place of work. This legal principle “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 which are peculiar to the industrial enterprise”.  Watson v Nassau Inn, 74 N.J. 155 (1977), Livingstone v Abraham & Straus, Inc., supra.

An injury that occurs while an employee is going to or coming from work is not compensable unless the employee is (a) required by the employer to be away from the place of employment or (b) engaged in the direct performance of duties assigned or directed by the employer.  Nemchick v Thatcher Glass Manufacturing Company, 203 N.J. Super. 137 (App. Div. 1985), Ehrgott v Jones, 208 N.J. Super. 393 (App. Div. 1986),

Ohio Casualty Group, Supra.

According to Petitioner’s testimony, she held two part-time positions. On weekdays, between the hours of 7:15 a.m. and 9:15 a.m. and again between 2:15 p.m. and 4:15 p.m., she was a school bus driver for Respondent Wolfington Body Company.  At some time between 9:15 a.m. and 2:15 p.m. she worked as a “bus jockey” for Jersey Bus Company.  The details of the latter position are not germane to the motion except for the fact that Petitioner was returning from her duties as a bus jockey to the Wolfington Bus yard when the accident in question occurred.  Petitioner testified that on October 29, 2002, she was returning to the Wolfington Bus yard, in her personal vehicle, when she stopped at a construction site as instructed by a flagman.  While at a standstill, another motorist struck her vehicle from the rear, resulting in the injuries that were the basis of the present claim petition.

In Ohio, the employee was involved in an automobile accident while taking a friend home from the hotel where he was staying.  The employee was, at the time, on an out-of-state assignment and was using a company owned vehicle.  The Appellate Division held that Petitioner’s travel was not in the course of his employment and was therefore not compensable.  This Court finds nothing in the facts or holding in Ohio to support this Petitioner’s contention.  She was not driving a company owned vehicle and was not on assignment by or on behalf of her employer.

Zalesko also offers no support for Petitioner’s argument.  Our Supreme Court held, in that case, that the employee was not entitled to workers’ compensation benefits for injuries sustained while driving his own vehicle home from work.  The Court denied petitioner’s application for compensation because he was not on business for his employer and, at the time of the accident, he was outside his employer’s scope of control.

Finally, in Nebesne the Appellate Division directed the dismissal of a claim petition when it determined that there was no evidence that Petitioner was being compensated for travel expenses.  The Petitioner in this case was paid only for the time spent driving to take students to and from school.  There were no payments remotely resembling travel reimbursement that would have brought Petitioner within the paid travel time exception.

Having reviewed the testimony and the cases cited by Petitioner, I find no basis to support Petitioner’s contention that, at the time of the accident, she was involved in her job duties that would qualify as a “special mission” or employee “travel time”.   No aspect of her travel was of particular benefit to her employer.  As stated previously, Petitioner testified that her accident occurred during the time period that she would normally be conducting her afternoon “run”.  Her argument essentially is that she is paid for that block of time.  Since she was compensated at a set rate regardless of how long it takes her to complete her “run”, then any activity reasonably related to her job duties during that time period was work related and therefore compensable.  Nowhere in her testimony does Petitioner purport to show that she was required by her employer to be away from her place of employment, or that she was actually engaged in the direct performance of her employment duties.  She was not in an employer-authorized vehicle at the time of the accident.  Petitioner’s sole argument, therefore, is that the precise time of the accident brings that event within the travel time exception.  I find this contention to be without merit.

In summary, Petitioner was returning to Respondent’s bus yard from her other part-time job when the accident in question occurred.  Moreover, Petitioner testified that, because of weather conditions at the time, she was late returning to the bus yard.  The accident occurred at 2:33 p.m., a point in time that Petitioner would normally be conducting her afternoon “run”.   Petitioner’s argument would tend to concede that, had she been returning to the bus yard at an earlier hour, for example, at 1:30 p.m., and the accident had occurred then, she would not have been covered since the accident would have occurred outside Petitioner’s blocks of working time.  By this reasoning, coupled with Petitioner’s testimony that she was late returning to the bus yard, she should qualify for compensation coverage by virtue of being late.  This Court is loath to ascribe such a skewed interpretation to the intent of the Workers’ Compensation Statute.

It is undisputed that Petitioner’s accident occurred on a public roadway prior to her arrival at her place of employment.  She was not performing any duties assigned or directed by her employer.  She was not paid for travel to and from her job site.  She was not driving a company owned or authorized vehicle at the time of her accident.  She does not qualify for any of the recognized exceptions to the “going and coming rule”.  Therefore her injuries did not arise out of nor occurred in the course of her employment.

The above-referenced Claim Petition is dismissed.  A stenographic service fee of $150.00 has been assessed against Respondent, payable to State Shorthand Service.  An  order shall be entered accordingly.

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Honorable Emille R. Cox
Judge of Compensation

March 5, 2004