BEFORE:

                        THE HONORABLE COSMO A. GIOVINAZZI, III
                        Judge of Compensation

APPEARANCES:

                        Robert J. Campbell, Esq.
                        551 Route 50
                        Mays Landing, NJ  08330
                        Attorneys for Petitioner

                        Charles P. Hopkins, III, Esq.
                        By:       Stephen R. Banks, Esq.
                                    655 Shrewsbury Avenue
                                    Shrewsbury, NJ  07702
                        Attorneys for Respondent

PROCEDURAL HISTORY

Petitioner filed a motion for medical benefits on October 28, 2004 alleging that he was in need of medical treatment as a result of injuries sustained in a motor vehicle accident which occurred during the course of employment on June 11, 2002.

Respondent filed an answering statement denying petitioner’s need for medical treatment, and asserted that, pursuant to N.J.S.A. 34:15-36, petitioner was not in the course of his employment when he was injured in the motor vehicle accident after leaving a remote job site.  Petitioner had resigned his employment with respondent in May of 2003, approximately one and one half years prior to filing his motion.  Testimony in this case was taken on January 12, 2005 and February 2, 2005.  Thereafter the attorneys submitted briefs in support of their respective positions. 

STATEMENT OF FACTS

Petitioner was hired to work as an installation technician in the ES & I Department of Telsource Corporation in July of 2001.  Petitioner’s job required him to install telecommunications equipment in remote work sites, which included customer equipment locations or in user facilities (P-1).  Specific job duties included installation/removal work functions, job specification and drawing analysis, complex wiring and splicing, cable placement, removal, preparation and termination, as well as framework assembly and removal.  During the course of his employment, petitioner installed telecommunications equipment at various locations in New York, Pennsylvania, New Jersey, Maryland and Delaware.

Although petitioner was apparently hired as an Installation Technician III, he testified that he became a lead installer, which required him to install telecommunications equipment at various locations, and to check the work of personnel working under him.  Initially, petitioner was required to drive his own vehicle to various job sites.  However, approximately six months after being hired, petitioner was supplied with a company vehicle, which he identified as a small Toyota pickup truck.  Approximately six months later, he was given a Chevrolet van.  Company vehicles were to be used for business purposes only, and not to be used for purposes outside of Telsource business or for carrying non-business related passengers.  Respondent provided petitioner with a gas card, and reimbursed him for tolls.  Subsequently, respondent provided petitioner with E-Z Pass, so that all travel related expenses were paid by respondent.  Petitioner normally worked an eight hour day, but his work day did not begin until he arrived at the site where he was to install telecommunications equipment.  Petitioner testified that he was not allowed to eat in his company vehicle, to “mess with the radio” or to talk on a cell phone while driving.  As petitioner put it, “you weren’t allowed to do anything but drive the vehicle to the job site.”

Petitioner was issued tools by the respondent which he carried in his van, and which he used at every job site.  In addition, petitioner sometimes transported materials or equipment which was to be installed at a particular job site in his van.  Frequently, the equipment to be installed was delivered directly to the job site.  On other occasions, the equipment was delivered to one job site and he transported it to the next job site.  On other occasions, he stopped at the Swedesboro facility to pick up equipment which had to be installed at a particular job site. 

Respondent’s witness, Raymond J. Carr, testified that petitioner, as an EFI Technician, had an office in a warehouse located in West Deptford which respondent portrayed as a conventional place of employment.  However, it is apparent to me, and I so find, that petitioner only went to the West Deptford warehouse facility on days when he had no installation work to perform for the respondent (P-4).  On most days, when petitioner was performing installation work at remote sites, he traveled directly from his home to the remote job site in his company vehicle. 

On June 10, 2002, while doing installation work at a remote job site for the respondent, petitioner learned that he had been assigned to install power equipment at a Verizon central office in Gloucester Township, New Jersey which petitioner described as an emergency job.  On the afternoon of June 10^th, after completing his assigned work, petitioner went to a Telsource facility to pick up materials required to perform the emergency job.  He arrived home at about 6:00 p.m., and left for the remote job site in West Deptford at about 9:30 p.m.  Petitioner worked from about 11:00 p.m. until completing the job at approximately 4:00 a.m. on June 11^th.  At about 4:00 a.m. his boss arrived at the Verizon central office and indicated that since he was getting paid for eight hours, he had to remain on the job site for his entire shift.  At about 6:00 a.m., his boss authorized him to leave the Verizon job site.  On his way home, driving the company van, petitioner fell asleep at the wheel and veered off the road, striking a telephone poll, sideswiping a tree and coming to rest in a ditch.  Petitioner suffered injuries as a result of this one vehicle accident and missed the next three work days.  Petitioner was advised by his employer that his accident was not covered by workers’ compensation insurance since he was on his way home from work (P-6).  Petitioner thus used vacation days for the missed time and his private health insurance for medical treatment.

The parties have agreed that petitioner’s need for medical treatment is causally related to this automobile accident of June 11, 2002.  The only issue is whether petitioner was in the course of his employment at the time of the accident.

LEGAL ANALYSIS AND DECISION

The Workers’ Compensation Act, as originally adopted in 1911, did not contain a definition of employment.  As a result, the courts attempted to develop principles capable of distinguishing between those accidental injuries which may fairly be said to have some work connection and those which may be fairly said to be unrelated to employment.  To make this distinction, the “going and coming rule” evolved.  This rule precludes an award of compensation benefits for injuries sustained during routine travel to and from an employee’s regular place of work.  The doctrine rests upon the assumption that an employee’s ordinary, routine day to day journey to and from work, at the beginning and at the end of each 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 rule was swallowed up by exceptions.  As a result, in 1979 the legislature adopted amendments to the Workers’ Compensation Act to “establish relief from the far reaching effect of going and coming rule decisions, by defining and limiting the scope of employment.”  See Senate Labor, Industry and Professions Committee Joint Statement to Senate No. 802 SCS and Assembly No. 840 ACS, November 13, 1979.

N.J.S.A. 34:15-36 which defines employment, provides in pertinent part as follows:

“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 an 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. …”

Respondent argues that petitioner was not in the course of employment at the time of his auto accident on the morning of June 11, 2002 because he had left the job site where he had been working in West Deptford and was on his way home, so that he was no longer engaged in the direct performance of his job duties.  Respondent sites Zelasko v. Refrigerated Food Express, 128 N.J. 329, 608 Atl. 2^nd 231(1992) in support of its position.  Zelasko involved an over the road truck driver who had returned to respondent’s terminal at the end of the work day where he dropped off several pallets.  Thereafter, Zelasko left the terminal with approximately 30 pallets belonging to him on his truck and headed toward his home in Cranbury.  Petitioner stopped his truck approximately three to four hundred feet from his home because the pallets in the back of his truck were loose.  As he attempted to secure the pallets, he lost his balance on the back of the truck and attempted to jump to the ground.  As he did so, he landed improperly and injured his left foot.  The court held that petitioner had completed his work day, and was not engaged in the direct performance of duties assigned to him so as to bring him within the “special mission” exception of N.J.S.A. 34:15-36. 

In analyzing Section 36 of the Workers’ Compensation Act, the Zelasko court stated that, as a general rule, the Appellate Division interpreted the statute as not allowing compensation for accidents occurring in areas outside of the employer’s control, as when the employee is going to and from work.  However, the court noted that there are two exceptions to the general rule, as follows:

“A ‘special mission’ exception allows compensation at any time for employees 1. required to be away from the conventional place of employment; 2. if actually engaged in the direct performance of employment duties. 

A ‘travel time’ exception allows portal-to-portal coverage for employees 1.  paid for travel time to and from a distant job site, or 2. using an employer authorized vehicle for travel time to and from a distant job site.”

The court went on to note that the first category, the “special mission” exception is exemplified by the cases of Ehrgott v. Jones, 208 N.J. Super. 393 (App. Div. 1986) and Nemchick v. Thatcher Glass Manufacturing Co., 203 N.J. Super 137 (App. Div. 1985). 

With regard to the paid travel or authorized vehicle exception, the court cited Mahon v. Reilly’s Radio Cabs, Inc., 212 N.J. Super. 28, (App. Div. 1986) noting that the Mahon court introduced the concept that the job site reference in Section 36 is to a distant job site.

In Nemchick vs. Thatcher Glass Manufacturing Co., Super, petitioner was employed by respondent as a supervisor at respondent’s plant, working 7:00 a.m. to 5:00 p.m. each day.  At 4:45 p.m. on a work day, petitioner received instructions from his supervisor to report to a customer facility approximately fifty miles away from respondent’s plant by 10:30 p.m., in order to investigate a problem with glass products which had been shipped to that company.  Petitioner arrived at the job site at 10:00 p.m., worked through the night until approximately 8:00 a.m., and stopped at a coffee shop for breakfast on the way home.  After leaving the coffee shop, petitioner blacked out at the wheel of his car and collided head on with another vehicle.  The court noted that petitioner’s trip from the customer’s facility in Warren County was a significantly different route than his normal route home from respondent’s plant.  Petitioner received no additional income for the travel time to and from the customer’s facility.  The court held that petitioner fell within the “special mission” exemption as described in the statute, noting that this exception had been preserved in the definition of employment adopted by the legislature.  In describing the purpose of the amendment, the court stated that the “essential inquiry must be whether the employee was in the direct performance of his assigned duty.”  In Nemchick, the court concluded that the fact pattern presented was a “special circumstance or arrangement of a type intended by the legislature to survive the 1979 revision of the act, and that the entire journey to and from Johanna Farms was in the direct performance of petitioner’s assigned duties.  After petitioner’s regular eight hour shift, he was unexpectedly requested by his supervisor to journey fifty miles to an unfamiliar place to perform an assignment for respondent’s benefit which required ten hours to accomplish.  He was faced with making his homeward journey after approximately twenty seven sleepless hours.  The inconvenience, disruption of petitioner’s normal daily routine, and, no doubt, enhanced exposure to hazard because of weariness and fatigue would not have ensued but for the work related assignment, the benefits of which enored exclusively to respondent.  That inconvenience and enhanced exposure to hazard was no less present after petitioner phoned in his report to respondent.  In short, we are completely satisfied that petitioner’s entire journey home was sufficiently substantial to be viewed as an integral part of the service itself. … to conclude otherwise would do violence to the remedial purpose and spirit of the act.”

In the instant case, the factual scenario leading up to petitioner’s accident on the morning of June 11, 2002 are almost identical to the fact pattern in Nemchick.  Like Nemchick, Joseph Sprigg had been advised during his regular work day that he would be required to travel to West Deptford, New Jersey on the evening of June 10^th to perform an emergency installation job.  After picking up the required materials, he went home at about 6:00 p.m., and left at 9:30 p.m. to perform the emergency installation at Verizon central office in West Deptford.  He arrived at about 10:40 p.m., and worked through the night until about 6:00 a.m.  Since petitioner’s regular work day usually began at 6:00 a.m., he had been up for twenty four hours when he left the Verizon central office at about 6:00 a.m.  On the way home, petitioner fell asleep at the wheel and was injured in a one car accident. 

While petitioner normally traveled to distant job sites during the course of each day, traveling to a second distant job site after working a full day certainly caused inconvenience, disruption of his normal daily routine and enhanced exposure to hazard because of weariness and fatigue.  The work assigned which he performed at the Verizon central office was exclusively for the benefit of respondent.  Furthermore, petitioner was driving respondent’s vehicle which was only to be used in the performance of work duties.  He was restricted to driving to and from assigned job sites in that vehicle.  I conclude that petitioner falls within the “special mission” exception and that his entire journey home was sufficiently substantial to be viewed as an integral part of the service itself.  To do otherwise would do violence to the remedial purposes and spirit of the Workers’ Compensation Act. 

In addition, I further conclude that petitioner’s accident fell within the “travel time” exception to the statute since he was using an employer authorized vehicle for travel to and from a distant job site.  In discussing this exception in Zelasko v. Refrigerated Food Express, supra, Justice O’Hearns, quoting Judge Gaynor in Mahon v. Reilly’s Radio Cabs, Inc., supra, stated:

“The travel time criterion is applicable only when the employee’s injury is sustained while going to and from a job site distant from the place of employment and the employee is either paid for the time spent in so traveling or is transported in an employee authorized vehicle.  The two elements – performance of assigned duties away from the place of employment and either payment for travel time or traveling in an authorized vehicle – are requisite elements for the application of the act to an injury incurred while traveling to and from work.”

Applying this definition to the instant case, I conclude that petitioner’s injury also falls within the travel time exception since he was returning from a distant job site while traveling in an employer authorized vehicle.  Since the vehicle in question was used only for the business purposes of the respondent, Telsource Corporation, and since petitioner had to travel to the site with the tools and equipment needed to perform the emergency job, I conclude that 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.  See Ehrgott v. Jones, 208 N.J. Supra, 393 (App. Div. 1986); Mahon v. Reilly’s Radio Cabs, Inc., 212 N.J. Super. 28 (App. Div. 1986).

I will allow a stenographic fee of $300 to Jersey Shore Reporting, LLC which shall be assessed against the respondent.  I request petitioner’s attorney to prepare an order consistent with this decision. 

                                                                        __________________________________

                                                                        Honorable Cosmo A. Giovinazzi, III
                                                                        Supervising Judge of Compensation

Date:  May 25, 2005