Whether Going or Coming, It's Still Not Compensable
By Angela Y. DeMary, Esq.*
One of the most prevalent issues for a workers' compensation practitioner is determining whether an injury sustained while driving to and from work is compensable. Whether it is dealing with a sales person, delivery person or business professional, the issue as to whether an incident occurring during the commute from home to work (and vice versa) is compensable becomes an issue. In New Jersey, such issues are commonly referred to as "going and coming" or "premises" issues. As a general principle, injuries sustained while driving to and from the workplace are not deemed compensable. However, there are exceptions that may satisfy the burden of proving compensability. As a result, it is important for practitioners to be aware the same.
The New Jersey Appellate Division recently provided clarification of the "going and coming" issue in the matter of Kernan v. The State of New Jersey, 2013 N.J. Super. Unpub. LEXIS 1501 (N.J. Super App. Div. Jun. 19, 2013). By way of background, Audrey Kernan filed a claim petition with the New Jersey Division of Workers' Compensation alleging that she sustained multiple injuries as a result of a motor vehicle accident on September 13, 2011. Specifically, Kernan was an administrative supervising judge for various vicinages. As a part of her duties, she was responsible for conducting periodic on-site visits at the various workers' compensation hearing offices; usually, she was located at one of the offices in Atlantic City. On the date of the alleged incident, Kernan alleged she was involved in a motor vehicle accident while driving from her home in Cape May County to one of her periodic on-site visits at the Camden County office. Although Kernan filed the claim petition alleging that her injuries arose out of and during the course of her employment, relying upon the principles of the "going and coming" rule, the state denied compensability of the claim, arguing that the injuries did not arise out of and during the course of her employment.
After a full hearing, the Judge of Compensation held that Kernan failed to sustain her burden of proving a compensable, work-related injury. An appeal was filed.
The Appellate Division affirmed the Judge of Compensation's ruling that the claim was not compensable because Kernan failed to prove that her injuries arose out of and during the course of employment, as required by Section 7 of the New Jersey Workers' Compensation Act. Furthermore, the Appellate Division found that Kernan failed to sustain her burden of proving that her commute fell within one of the exceptions to the "going and coming" or "premises" rule as prohibited by Section 36 of the New Jersey Workers' Compensation Act.
As to the issue of compensability, the Appellate Division reasoned that Section 7 requires that an injury "arise out of and during the course of employment" to be compensable. On three bases, the Appellate Division found that Kernan's injuries were not compensable:
(1) It agreed with the lower court that Kernan's motor vehicle accident did not bear a significant causative relationship to her employment because it was personal to her and could have happened anywhere. Specifically, the accident occurred approximately one hour before Kernan was to report to the hearing office.
(2) It also rejected Kernan's argument that her claim should be compensable since she was required to travel to work. The Appellate Division reasoned that accidents occurring during the commute to and from work (and vice versa) are not compensable, as well, accidents occurring outside of areas controlled by the employer typically are not compensable.
(3) It found that Kernan did not confront any special hazards posed by her employer during her commute or in the employer's control to render the accident compensable.
In addition to rejecting Kernan's argument that the motor vehicle accident arose out of and during the course of her employment as an administrative supervising judge, the Appellate Division also rejected her argument that the motor vehicle accident fell within any exception to the "going and coming" or "premises" rule. Specifically, the Appellate Division analyzed two exceptions to the "going and coming" rule or "premises" rule: (1) the special mission exception; and (2) the paid travel time exception.
Kernan argued that she was on a "special mission," as her periodic commute to Camden was longer than her usual, daily commute to her customary site in Atlantic City. Contrary to Kernan's argument, the Appellate Division held that she did not have just one place of employment, but multiple places of employment in her job position. As such, the Appellate Division agreed with the lower court judge that the claim is barred by the "going and coming" or "premises" rule, as the accident occurred before Kernan arrived to work.
The Appellate Division thoroughly analyzed the "special mission" exception. First, the court noted that the "special mission" exception provides coverage for accidents occurring in areas not under the employer's control if: (1) the employee is required by the employer to work at a job site distant from her regular place of employment; and (2) the employee is either in the direct performance of her assigned duties, or engaged in an activity "sufficiently substantial to be viewed as an integral part of the work itself." The court noted that if, hypothetically, Kernan's accident had occurred during work hours on a trip from the Atlantic City office to Camden, her injuries may have been compensable because she would then have been driving "on business authorized by the employer" during normal working hours and receiving her salary for that time. However, since Kernan was traveling directly from home to work, the exception did not apply.
The Appellate Division also rejected applicability of the "travel time" exception to the "going and coming" rule. Specifically, the "travel time" exception deals with injured employees who are: (1) paid for travel time to and from a distant job site; or (2) are using an employer-authorized vehicle for travel time to and from a distant job site. Kernan was not paid a wage for her travel time. She was only reimbursed for travel expenses, i.e. mileage and toll charges. The Appellate Division affirmed that payment for mileage is not the same as paid travel time. Furthermore, the court noted that Kernan was in her personal automobile when the accident occurred, not a state-owned vehicle. Therefore, the "travel time" exception also did not apply.
This recent Appellate Division decision reiterates the requirements for determining whether an accident arising during a commute to and from work is compensable. The decision upholds the general principle that accidents occurring during one's commute to and from work are not compensable, with exceptions. The mere fact that one periodically works at an other-than-usual location does not render the commute from home to that periodic work site a "special mission." Additionally, mileage and toll reimbursement does not constitute paid "travel time," such as would render a commute from home to work (and vice versa) compensable.
*Angela is an associate in our Cherry Hill, New Jersey, office who can be reached at 856.414.6409 or firstname.lastname@example.org.
Defense Digest, Vol. 19, No. 3, September 2013
Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.