CAROL FABER

             v.                                                                             CLAIM PETITION 2004-3842

M&C VENDING, CO., INC.

                        Attorney for Petitioner:  Sean M. Dillon (Sean M. Dillon, LLC) 

                   Attorney for Respondent:  Joseph M. Soriano (Rotella & Soriano)

          Petitioner Carol Faber filed a dependency claim petition following the death of her husband Harold Faber (hereinafter “Faber”), an employee and co-owner of the respondent.  On August 22, 2003, Faber was killed in an automobile accident. This occurred at approximately 6:50 am when the van he operated crossed into the northbound lane of traffic on Kinderkamack Road in River Edge at or near its intersection with Reservoir Avenue.  At the time of the collision, Faber was wearing his work uniform and operating a van owned by respondent. 

          The issue before the court is whether Faber’s death arose out of and in the  course of his employment pursuant to N.J.S.A. 34:15-36.  It is the court’s opinion that petitioner failed to sustain her burden of proving, by a preponderance of the credible evidence that Faber’s death arose out of or during the course of his employment with respondent.

          The ‘going and coming’ rule “was established as a convenient formula for separating work connected risks from those which are unrelated to employment.”  Mangigian v. Franz Warner Assoc., Inc., 205 N.J. Super. 422, 425 (App. Div. 1985), quoting Watson v. Nassau, Inc., 74 N.J. 155, 158-160 (1977). Under the going and coming rule, an employee’s ordinary travel to and from work is not compensable because such travel neither benefits the employer nor exposes the worker to risks peculiar to his employment.  Id.

          With the passage of the Reform Act of 1980, of which N.J.S.A. 34:15-36 was a part, the legislature sought to establish “relief from the far reaching effect of the ‘[g]oing and [c]oming [r]ule’ decisions by defining and limiting the scope of  employment.”  Joint Statement of the Senate and Assembly Labor, Industry and Professions Committees to S802 and A840 (1979).

          Faber owned a 40% share of respondent company with his brother Elliot owning the remaining 60%.  As the name implies, M&C Vending is a vending machine business with its office located in Hackensack, New Jersey.  When asked to describe Faber’s position with respondent witnesses stated he was a “jack of all trades” Carol Faber Transcript (hereinafter “CFT”) 6, L.4, “the main gofer” Elliot Faber Transcript (hereinafter “EFT”) 6, L. 1.  Witnesses agreed that one of Faber’s duties was as a vending machine mechanic, repairman. CFT 6, L. 3-11; EFT 6, L. 5-13.

          On the evening of August 21, 2003, Faber admitted himself to Pascack Valley Hospital (hereinafter “the Hospital”) at approximately 9:30 pm for the purpose of undergoing a sleep study as a prerequisite to gastric bypass surgery.  According to the Hospital’s records, Faber had quite a restless night’s sleep.  The progress notes from the Hospital read, in pertinent part, “severe continuous persistent events observed…Tons of arousals (respiratory related) noted.  Sleep was fragmented due to severity of events & [sic] arousals.” P1-Evid.  At 6:25 am on August 22, 2003, Faber was observed “ ½ [sic] dressed laying [sic] across bed sound asleep snoring & [sic] gasping…when pulling on socks he was gasping.” P1-Evid.

          Approximately 25 minutes after this observation, the fatal collision occurred.  What Faber did during those 25 minutes is the issue before the court.  Petitioner wants the court to find that prior to the fatal accident Faber stopped at the Yeshiva on Kinderkamack Road in River Edge to repair a vending machine and therefore had arrived at his employer’s place of employment pursuant to N.J.S.A. 34:15-36.

          Respondent’s repair log dated August 21, 2003 reflects that the candy vending machine at the Yeshiva was not taking bills.  P7-Evid.  However, no proof has been presented that Faber saw that entry.  There has been no testimony that Faber told anyone he was going to repair the vending machine at the Yeshiva after leaving the Hospital.  Petitioner has produced no eyewitnesses that Faber and/or the vehicle he was driving was observed at the Yeshiva on the morning of August 22, 2003.  Elliot Faber reported to the Yeshiva the week following the collision and learned that the candy vending machine in question still was not accepting bills.  EFT 14, L. 1.  Thus, it appears that Faber never repaired the malfunction with the candy vending machine.

          The court takes judicial notice that Map Quest estimates the distance from the main entrance of the Hospital to the Yeshiva to be approximately 4.57 miles or approximately 12 minutes.  At 6:25 am, Faber was observed to be only half dressed and gasping while putting on his socks.  The Hospital records reflect that Faber stood 5’ 7’’ and weighed 292 pounds.  Clearly this was not a gentleman who moved quickly and without exertion.  The court simply does not believe it possible that Faber would have finished dressing, checked out of the Hospital, walked to the parking lot, drove to the Yeshiva, parked his van, walked to the candy vending machine, serviced the candy machine, walked back to the van and proceeded south onto Kinderkamack Road within 25 minutes.

          The testimony presented suggests that Faber was not en route to the Yeshiva but rather was going to the respondent’s Hackensack office to meet his son Alex or was en route to service the respondent’s Equitable account in Leonia. Alex Faber Transcript 18, L. 1-7; EFT 16, L. 9-18.

          Petitioner testified that her husband was very conscientious, CFT 7, L. 15 and that he started his day “around five-ish [getting] home around five or six at night.”  CFT 7, L. 12-13, 23-24.  However, statements regarding Faber’s work ethic do not constitute a preponderance of credible evidence that he reported to the Yeshiva.

          It must be emphasized that on August 22, 2003 Faber did not begin his day as he normally did.  He woke up at the Hospital after having undergone a sleep study.  Therefore, any testimony concerning Faber’s usual work practices is not relevant because August 22, 2003 was not a usual work day for Faber.

          In summary, the record is utterly devoid of any credible evidence that Faber’s accident arose out of or in the course of his employment pursuant to N.J.S.A. 34:15-36.

                                                          Diana Ferriero, J.C.

February 28, 2006