Zelasko v. Refrigerated Food Express

The opinion of the Court was delivered by

O’HERN, J.

This is a workers’ compensation appeal. The issue is whether an accident that occurs after working hours, while an employee is en route to park his trailer at an off-site parking area not furnished by the employer, is compensable. The vehicle owned by the employee had been used by the employee on business authorized by the employer during the work day. We hold that the accident does not fall within any of the statutory exceptions that allow an award of workers' compensation benefits while “going and coming” to and from a place of employment. Thus, we reverse the judgment below.

I

Although petitioner is bound by the factual findings of the workers’ compensation judge, we accept the version of facts set forth in his Appellate Division brief. Because the employee is referred to as the petitioner and the employer as the respondent in workers’ compensation proceedings, we continue those references here.

Petitioner, George Zelasko (Zelasko or petitioner), drove a tractor-trailer for respondent, Refrigerated Food Express (Refrigerated or respondent). He was contractually required to own both the tractor and refrigerated trailer. During his off-duty hours, petitioner parked his tractor at his home in James-burg and his trailer in nearby Cranbury, on the property of an acquaintance. Jamesburg has an ordinance that bans overnight parking of a trailer. At the time of petitioner’s injury, he had been employed by Refrigerated for thirteen years. Throughout that thirteen-year period, petitioner was required to submit a daily time log to Refrigerated. Petitioner’s usual *333routine was to log in when he entered his tractor in the morning and then to drive to Cranbury to pick up the trailer. In the evening, after leaving the trailer in Cranbury, petitioner would log out after returning to Jamesburg in the tractor.

On Thursday, April 12, 1990, Zelasko made a delivery to Supermarkets General in Woodbridge in the tractor-trailer. After unloading the trailer, he drove to Refrigerated’s terminal in Old Bridge. There he dropped off several pallets. Because his next scheduled delivery date was not until Monday, April 16, petitioner did not reload. Zelasko then left the terminal with approximately thirty pallets belonging to him and headed toward Cranbury.

While en route to Cranbury, petitioner heard the pallets “kicking around” in the trailer. Realizing that the pallets might cause damage to the refrigeration unit, Zelasko decided to pull over. However, he was unable to do so immediately because the highway he was traveling on was very narrow and there was heavy traffic in the area. According to petitioner, because he was near his home, he knew of an area where he could safely pull over. Zelasko left the highway and stopped his truck approximately 300-400 feet from his home. He then left the tractor and climbed into the trailer to secure the pallets. While standing at the edge of the trailer, Zelasko began to lose his balance and decided to jump to the ground. Unfortunately, he landed improperly and injured his left foot.

On June 14, 1990, Zelasko filed a claim petition with the Division of Workers’ Compensation. Refrigerated denied that the injury was compensable. The compensation judge dismissed petitioner’s claim, finding that Zelasko had not been under Refrigerated’s control at the time of the accident. The judge reasoned that Zelasko “left his employer’s control * * * when he drove out of the employer’s parking lot on Thursday afternoon.”

The Appellate Division, in an unreported opinion, reversed. Relying on the authorized-vehicle exception to N.J.S.A. 34:15-*33436, the panel held that at the time of the accident Zelasko had been driving an employer-authorized vehicle and that driving the vehicle to the overnight parking area was business authorized by the employer. We granted certification, 127 N.J. 555, 606 A. 2d 367 (1991).

II

Recently, in Livingstone v. Abraham & Straus, Inc., 111 N.J. 89, 543 A.2d 45 (1988), we reviewed the “going and coming” rule of workers’ compensation liability. We summarize the principles set forth therein.

Our original employees’ compensation act did not contain a definition of employment. The Act simply allowed compensation when an employee was injured or killed in an accident “arising out of and in the course of employment.” L.1911, c. 95, § 7. Because of the “sweeping generality of the statutory terms,” it became necessary for the courts to develop principles to distinguish between “those accidental injuries which may fairly be said to have some work connection and those which may fairly be said to be unrelated to the employment.” Hornyak v. Great Atl. & Pac. Tea Co., 63 N.J. 99, 102, 305 A.2d 65 (1973). Thus, the courts developed the “going and coming” rule to differentiate between compensable and non-compensable claims. That rule ordinarily precluded an award of compensation benefits for “injuries sustained during routine travel to and from an employee’s regular place of work.” Watson v. Nassau Inn, 74 N.J. 155, 158, 376 A.2d 1215 (1977). However, many exceptions to the basic “going and coming” rule had arisen. Id. at 159, 376 A.2d 1215. In fact, those exceptions were so numerous that they “overshadowed” the basic rule. Ibid.

In 1979 the Legislature amended the Workers’ Compensation Act in significant respects. L.1979, c. 283. The legislative history of the Act suggests that the primary goals of that legislation “were to eliminate awards for minor partial disabilities, to increase awards for the more seriously disabled, and to *335contain the overall cost of workers’ compensation.” Perez v. Pantasote, Inc., 95 N.J. 105, 114, 469 A.2d 22 (1984) (citing Senate Labor, Indus, and Professions Comm., Joint Statement to Substitute for S.802 & A.840 at 1 (Nov. 13, 1979) (Joint Statement)). That new legislation contained a specific definition of employment, L.1979, c. 283, § 12, which is now codified at N.J.S.A. 34:15-36. That definition is 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 * * Ibid. The Legislature continued:

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. [Ibid.]

Thus, the Legislature stated its intent to “establish[] relief from the far-reaching effect of the ‘going and coming rule’ decisions by defining and limiting the scope of employment.” Joint Statement, supra, at 2.

Although the question of off-premises accidents was not immediately addressed in the legislative history, the Chief Judge of Compensation stated in an article written shortly after enactment of the legislation that compensation for off-premises accidents was “sharply curtailed” by the new definition of employment. Alfred J. Napier, Impact of the Reform Act of 1980, 96 N.J.Lawyer 17, 18 (Summer 1981). He specifically construed N.J.S.A. 34:15-36 “to remove from compensability certain cases heretofore held compensable where special hazards existed en route to the employer’s premises, [and] off-premises injuries sustained during lunch hour.” Id. at 18. However, he warned that the “basic pattern and objectives of our Workers’ Compensation Act remain unchanged.” Id. at 17.

*336In a series of opinions, our Appellate Division has filled in the contours of those statutory provisions. Although we must take some liberties with the syntax of the statute, as a general rule we interpret 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 coming from work. However, there are exceptions to that general rule.1

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.

We derive that understanding of the statute from the Appellate Division opinions interpreting the provisions of N.J.S.A. 34:15-36.

The first category, the “special-mission” exception, is exemplified by the cases of Ehrgott v. Jones, 208 N.J.Super. 393, 506 A.2d 40 (App.Div.1986), and Nemchick v. Thatcher Glass Manufacturing Co., 203 N.J.Super. 137, 495 A.2d 1372 (App.Div.1985). In the first case, the employee-chemist was en route to Newark Airport to depart by plane to a convention in Las Vegas. He planned to arrive a day early for sightseeing. 208 N.J.Super. at 395-96, 506 A.2d 40. In Nemchick, the employee was returning home from an all-night assignment to investigate a problem with glass products at a client’s plant at the behest of his employer. 203 N.J.Super. at 140, 495 A.2d 1372. In each instance, employment required the employee to be away from the conventional place of business, and because the travel *337was an indispensable part of the performance of the job duty, it was required as part of that mission.

In contrast, in Mangigian v. Franz Warner Assoc., Inc., 205 N.J.Super. 422, 501 A.2d 179 (App.Div.1985), a young woman required to be in New Jersey to conduct a field survey for her employer was not engaged in the direct performance of her duties when she went out for a late-night snaclc. Id. at 424, 501 A.2d 179. Nor was an employee required by his employer to be in Australia engaged in the direct performance of his duties when he took a day trip for sightseeing. Walsh v. Ultimate Corp., 231 N.J.Super. 383, 390, 555 A.2d 731 (App.Div.), certif. denied, 117 N.J. 92, 563 A.2d 849 (1989).

The paid-travel or authorized-vehicle exception is best understood in the context of Mahon v. Reilly’s Radio Cabs, Inc., 212 N.J.Super. 28, 513 A.2d 367 (App.Div.1986), certif. denied sub nom, 107 N.J. 79, 526 A.2d 159 (1987); Ohio Casualty Group v. Aetna Casualty & Surety Co., 213 N.J.Super. 283, 517 A.2d 166 (App.Div.1986); and Chisholm-Cohen v. County of Ocean, 231 N.J.Super. 348, 555 A.2d 713 (App.Div.1989). In Mahon, an employee of New Jersey Transit was provided free transportation, on the company’s facilities, to and from work. 212 KJ.Super. at 32, 513 A.2d 367. The court reasoned, however, that compensated travel to and from the customary place of business was not intended to be covered by the exception and it introduced the concept that the job-site reference in section 36 is to a distant job site. Id. at 34, 513 A. 2d 367. In Ohio Casualty, a New Jersey engineering company sent a supervisor to work on a nuclear plant in Vermont. 213 KJ.Super. at 285, 517 A. 2d 166. While there, at a late-night gathering of employees, he was authorized to use a company vehicle to take a companion home from the gathering. Id. at 286, 517 A.2d 166. Although he was required to be away from home and “utilize[d] an employer authorized vehicle,” he was neither engaged in the “direct performance of duties assigned or directed by the employer” nor “traveling to and from a job site.” K.J.S.A. 34:15-36. Finally, in Chisholm-Cohen, a training technician *338employed by the Ocean County Department of Emergency Services was injured in a car accident in a county-owned car. The accident occurred while the employee was traveling home to change her clothes during a break in her working hours. 231 N.J.Super. at 349-50, 555 A2d 713. The court explained that that accident involved ‘“the authorized operation of a vehicle on business authorized by the employer.’ ” Id. at 352, 555 A2d 713 (quoting N.J.S.A. 34:15-36). The court denied the employee’s claim, reasoning that although the employee was clearly authorized by the County to operate the vehicle, she had failed to prove the second element — that the vehicle was being operated “ ‘on business authorized by the employer.’ ” Ibid. (quoting N.J.S.A. 34:15-36).

Although those distinctions in both the special-mission and travel-time exceptions appear niggling, especially to the bereaved or injured, they do appear to be consistent with the legislative purpose of the 1979 amendments: to provide relief from the numerous exceptions to the “going and coming” rule that had evolved through judicial application of the prior statute, while at the same time providing a trade-off for the increased awards for more seriously injured and disabled workers. Judge Gaynor summarized the doctrine for our purposes as follows:

[T]he 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 employer 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. [Mahon, supra, 212 NJ.Super. at 34, 513 A.2d 367.]

Also, he noted, in a footnote not applicable to that case, that employment under the Act “extends to the time during which an employee is engaged in the authorized operation of a vehicle on business authorized by the employer.” Ibid. n. 1.

Applying those principles to the facts of this case leads us to reverse the judgment of the Appellate Division. This case *339comes to us on a record that allowed the compensation judge to find that petitioner was en route home from his regular place of work. Although the employer had required that petitioner be off the premises, his work day was over and he was in no sense engaged in the “direct performance of duties assigned or directed by the employer.” N.J.S.A. 34:15-36. He was free to pursue whatever activities he wished with the remainder of the day.

Although an argument is made that petitioner’s maintenance of mileage records from the place of employment until he arrived at home in his tractor was required by the employer, there is no evidence that that record-keeping was anything other than a regulatory requirement. The record contains no evidence that he was paid for the travel time. We note, parenthetically, that the travel was not to a distant job site.

The final possible exception — that employed by the Appellate Division — is that an “employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site.” N.J.S.A. 34:15-36. We do not believe that the Legislature intended the expression “employer authorized vehicle” to cover the employee-owned vehicle that may be used in the employer’s business unless on business authorized by the employer or en route to a distant job site. Here, petitioner was not going to or coming from a distant job site nor was he on business authorized by Refrigerated. The example of a real-estate salesperson or an attorney comes to mind. Often those employees are authorized by an employer to use an employee-owned vehicle. The broker or attorney would be covered for an accident only if en route to a distant job site such as a closing of a title and not for the trip from office to home at the end of a routine work day. The result would be the same even if the employee had used the car for the employer’s business during the course of the day, for example, to transport clients to a closing. Under those circumstances — using one’s own vehicle on the employer’s business— *340presumably the employer would be responsible only for the accidents that occur in the direct performance of employer-assigned duties.

We have repeatedly emphasized that the policy choices made by the Legislature, including its modification of the “going and coming” rule, reflect a legislative trade-off that “ ‘would make available additional dollars for benefits to the seriously disabled workers’ ” while at the same time “containpng] the overall cost of workers’ compensation.” Perez v. Pantasote, supra, 95 N.J. at 114, 469 A.2d 22 (quoting Joint Statement, supra, at 1). Those policy choices dictate disallowance of the claim for after-hours travel in the circumstances of this case.

The judgment of the Appellate Division is reversed and the judgment of the Worker’s Compensation Court is reinstated.

We do not discuss travel by police, fire fighters, or rescue squad employees. Nor do we discuss ridesharing arrangements. See N.J.S.A. 34:15-36.