The "travel time" exception to the "going and coming rule."

The petitioner was employed by the respondent as a magician and puppeteer who conducted school assembly programs where he taught children about safety and was paid an annual salary. He visited the respondent's offices approximately six times per year and received his work assignments and paychecks by mail. He drove a station wagon owned by the respondent from his home to the various schools where he was assigned to perform. The respondent insured the vehicle and paid for fuel, tolls and parking expenses incurred by the petitioner. However, the petitioner received no specific payment for mileage or travel time above his annual salary. The petitioner did not use the vehicle for his personal use.

On October 2, 2001, the petitioner performed at three different elementary schools, which were located approximately forty miles from his home. He was involved in a motor vehicle accident on his way home that day.

The petitioner filed a claim seeking benefits for injuries sustained as a result of his motor vehicle accident. At the conclusion of a bifurcated trial as to the issue of compensability, the Judge of Compensation found that the petitioner's motor vehicle accident did not arise out of and in the course of his employment. He accordingly dismissed the petitioner's claim.

In affirming the judge's ruling, the Appellate Division relied on the Supreme Court's interpretation of N.J.S.A. 34:15-36, the so-called "going and coming rule." Under N.J.S.A. 34:15-36:

Employment [is] 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 employee's place of employment, excluding areas not under the control of 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 any 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.

In Zelasko v. Refrigerated Food Express, 128 N.J. 329 (1992), the Court interpreted N.J.S.A. 34:15-36 as generally not allowing compensation for accidents occurring in the areas outside of the employer's control, as when the employee is going to or coming from work. However, the Court did interpret the statute to include a "travel time" exception, which allows portal-to-portal coverage for employees paid for travel time to and from a distant job site or while using an employer-authorized vehicle for travel to and from a distant job site.

The Appellate Division concurred with the judge's determination that the travel time exception was not applicable to the facts of this case. As the judge found, the schools, some forty miles from the petitioner's home, did not constitute a distant job site within the meaning of the statute, nor was the petitioner specifically compensated for mileage or travel time to and from these locations. As such, the Appellate Division affirmed the judge's finding that the petitioner's motor vehicle accident was not compensable as it did not arise out of, and in the course of, his employment.

Case Law Alerts - 2nd Quarter 2013