STATE OF NEW JERSEY
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
CAMDEN COUNTY, CAMDEN COUNTY DISTRICT

RESERVED DECISION

CLAIM PETITION
NO. C.P. 98-00488

CATHERINE WILLIAMS, Petitioner
vs.
CRESTBURY APARTMENTS/ INTERSTATE REALTY MANAGEMENT, Respondent.
 

BEFORE:
HONORABLE SHELLEY B. LASHMAN
Judge of Compensation

APPEARANCES:

JAMES M. CLANCY, ESQ.
Attorney for the Petitioner

MICHAEL HUBER, ESQ.
Attorney for the Respondent

* * *

This is a Motion for temporary and medical benefits, bifurcated by me on the issue of arising out of and in the course of employment.

FACTS

Petitioner was a Social Services Coordinator since June 2, 1994, for some four years, for Crestbury Apartments. They consist of 396 numbered units in South Camden off Morgan Boulevard, subsidized by HUD which required petitioner's services to set up and coordinate recreational services for children, adults, and senior citizens living there, to counsel them, and to facilitate summer programs.

Her normal job week consisted of 35 hours for seven hours per day during 9:00 to 5:00, five days per week, at a stipulated wage of $491.36 per week, with no overtime or bonuses. Generally, no weekend or evening work was involved unless she so scheduled special events.

The special event involved herein was a Sunday morning after Christmas, a December 28, 1997 10:00 A.M. to 3:00 P.M. visit to the Ice Capades at Corestates Center in Philadelphia, Pennsylvania. She submitted a written request and got approval of the children's trip in August 1997 and got approval also for funds for the minibus, from her site manager, Isaac King. It was contemplated that she would not accompany the trip, only be at the Crestbury Apartment site to ensure that the children got on the bus, and be there on their return to ensure that they all returned.

She had scheduled three prior non-9:00 to 5:00 trips during her four years there: National Night Out; a Halloween Party; and a Unity Fun Day.

Her offices were in the Crestbury Complex, and she lived in Lindenwold, New Jersey. At the time of the accident herein on December 28, 1997, she was en route from her home to the Crestbury Apartments when she was involved in a motor vehicle accident, injuring her left shoulder. She never arrived at her jobsite that day, has not worked since, and was subsequently terminated in June 1998. Petitioner received temporary disability from the State of New Jersey from December 28, 1997 through June 20, 1998 at $327 per week totaling $8,255.20. The bus trip did not occur because petitioner had the bus tickets and never arrived at the site.

The respondent Interstate Realty Management, whose New Jersey offices were located in Marlton, New Jersey, managed the property, actually hired all personnel, issued the employee handbook, issued the paychecks and kept the time sheets and pay records.

That employee handbook, in evidence, provided: "Compensatory time off is not permitted unless it is within the normal 40-hour workweek." The offices at Crestbury Apartments were closed on weekends and only staffed from 9:00 to 5:00 weekdays. Both petitioner and her immediate supervisor Isaac King testified that: "Flex time" was comp time to be taken for approved extra hours work, and taken only on the following Monday or within that next week, hour for hour.

The dispute arises between the testimony of petitioner and that of Isaac King as to whether company policy construed flex/comp time as portal to portal from home, or only after arrival at the Crestbury Apartments. There is a further conflict in testimony regarding travel expense reimbursement: Petitioner testified it was portal to portal from her home; Isaac King testified it was only to a distant place from the Crestbury Apartments.

In any event, the payroll records in evidence show no travel expense reimbursement for petitioner at all, and no indication of the basis for flex/comp time, that is whether portal to portal from home, or from Crestbury Apartments to another location.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Based upon the preponderance of the credible evidence before me:

I found petitioner to be extremely intelligent, but not completely credible. I based that finding on the fact that she was on 90-day probation on the date of the accident for excessive absenteeism and for failure to complete all assigned programs. Secondly, I found Isaac King, her immediate supervisor and a nine-year site manager for respondent, to be a far more credible witness. I based that on his lack of equivocation on facts, and his intimate knowledge of company policy, contrasted with petitioner.

I find as fact that "flex/comp" time was to be paid only for work other than 9:00 to 5:00 weekdays, and only after arrival at the Crestbury Apartments, contrary to petitioner's testimony.

I find further as fact that petitioner was not to be paid and was not paid for time spent traveling from her home to her normal workplace, Crestbury Apartments, contrary to petitioner's testimony.

I find further that travel reimbursement was not paid and was not to be paid "portal to portal" from petitioner's home to her normal workplace, Crestbury Apartments, contrary to petitioner's testimony.

I find, most significantly, that petitioner was not on a "special mission" at the time of her accident, but rather in the normal performance of her job duties, as outlined in her job description in evidence.

I find as a fact that petitioner was not en route at the time of the accident to a spot distant from her normal workplace, but en route to her office at Crestbury Apartments.

As a matter of fact, I rely on the language of Justice O'Hern in Zelasko v. Refrigerated Food Express, 128 N.J. 329 (1992) in that petitioner was not engaged in direct performance of duties assigned or directed by her employer so as to be within the "special mission" exception to the general rule which denies compensation for accidents occurring when an employee is going to and coming from work. She was not paid for travel time to and from a distant jobsite. She was not paid for mileage. She was not traveling in an employer-authorized vehicle.

The 1979 amendment to N.J.S.A. 34:15-36 specifically defined employment to eliminate the, court developed "going and coming" rule exceptions pertaining to travel to and from an employee's regular place of work. The pertinent portion of that statute now reads:

Employment shall be deemed to commence when 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 jobsite or if any employee utilizes an employer-authorized vehicle shall commence and terminate with the time spent traveling to and from a jobsite or the authorized operation of a vehicle on business authorized by the employer.

Id.

As pointed out by Justice O'Hern in a scholarly and lengthy dissertation, when dealing with the provisions of N.J.S.A. 34:15-36, the New Jersey "Appellate Division has filled in the contours of those statutory provisions. Zelasko, 128 N.J. at 336. The Supreme Court held:

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 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 jobsite, or

2. Using an employer-authorized vehicle for travel time to and from a distant jobsite.

Id.

Justice O'Hern then discussed the application of those principles, case by case by case, including Ehrgott v. Jones, 208 N.J. Super. 393 (App. Div. 1987) and Nemchick v. Thatcher Glass Manufacturing Co., 203 N.J. Super. 137 (App. Div. 1985) cited in petitioner's brief; Chisholm-Cohen v. County of Ocean, 231 N.J. Super. 348 (App. Div. 1989) cited in respondent's brief. I found all three of those cases distinguishable on their facts from the case sub judice, and therefore, inapposite. Accordingly, petitioner's claim petition is dismissed with prejudice after trial, for failure to sustain her burden of proof of a compensable accident arising in the course of her employment for respondent.

Respondent's attorney shall submit an appropriate Judgement for my signature, forthwith. The stenographic fee for two days of trial is $500 payable by respondent.

____________________________________

Shelley B. Lashman
Judge of Compensation

July 23, 1999