Price, Gaulkin and Sullivan. The opinion of the court was delivered by Price, S.j.a.d. Sullivan, J.A.D. (dissenting).
The appeal in this workmen's compensation case involves a single major issue arising from an uncomplicated factual situation. Presented is the question whether petitioner (a resident of New York State at the time he was hired in New York by a corporation of that state and resident in that state when injured), may, under the circumstances here present, recover workmen's compensation in New Jersey from his employer, under the provisions of R.S. 34:15-7 et seq. , because his injuries resulted from an accident which occurred in this State while he was driving his employer's tanker truck from Chester, New York, to a definite work assignment at Marcus Hook, Pennsylvania.
The County Court, affirming the judgment of the Division of Workmen's Compensation in favor of petitioner, held that "New York could have taken jurisdiction" but that "New Jersey may also take jurisdiction." The judge in compensation, during the course of the trial stated that "for the purposes of jurisdiction" it "doesn't make any difference" whether petitioner "was in transit," whether he "was actually working in New Jersey, if this accident had occurred in New Jersey." In his decision holding that petitioner was entitled to "invoke the New Jersey law," he held that petitioner's "passage through New Jersey several times a week between New York points and Pennsylvania points was in his regular and repeat [ sic ] course of employment."
Appellant contends that petitioner was not entitled to invoke the provisions of our Workmen's Compensation Act and the Division had no jurisdiction to entertain the action. However, the question is not whether the Division had jurisdiction but whether, under the facts existing in the case at bar, that jurisdiction should have been exercised. The decisions in our State indicate generally , the permissibility of its selection as the forum for the maintenance of an action under our Compensation Act if a petitioner's injury occurs here. However, in every case where the selection
of our State as the forum is based as here solely on the situs of the injury and such selection is challenged, the obligation is present to explore the factual circumstances attendant upon the employee's presence in this State at the time of the injury.
We pause to emphasize, as was done by Mr. Justice Oliphant in a different context in Buccheri v. Montgomery Ward & Co. , 19 N.J. 594, 604 (1955), that the decision in the instant case "goes no further than the resolution of the specific problem here presented and we are deciding that and no more. We are writing for this case and this case alone." The conclusion at which we arrive that the petitioner in the instant case should not be permitted to invoke our compensation law on the basis of the mere occurrence of the injury here involved is reached solely because of the circumstances explanatory of his presence in this State at the time of injury and in light of the fact that every other significant contact with the employment relationship under scrutiny is centered in New York.
The record before us reveals that at the time he was injured petitioner was operating appellant's tank-trailer from appellant's Chester, New York headquarters to Marcus Hook, Pennsylvania, to "pick up a load of propane gas and deliver it back to Chester, New York." Petitioner's passage through New Jersey en route to his aforesaid destination in Pennsylvania was by his employer's direction. His injuries were sustained at Ridgewood, New Jersey, when the truck "went out of control" and upset. After a temporary stay at a New Jersey hospital he came under the care of a doctor in Goshen, New York. The nature and extent of petitioner's injuries are not at issue on this appeal.
It was undisputed that petitioner had been "paid * * * compensation for temporary [disability] under the New York law." Petitioner testified that such payments covered a period of "a couple of months," but that he had not applied for compensation under the New York Compensation Act. Petitioner further testified that he had received from the
"Workmen's Compensation Board of New York" a "Notice of Decision, indicating that the case was closed on the second non-appearance of the claimant." With the exception of his acceptance of the New York temporary disability payments, petitioner ignored such remedy as the New York Compensation Act might have afforded and elected to invoke the provisions of the New Jersey Act. Should he be permitted so to do?
In support of an affirmative answer to that question petitioner points to the decisions under the compensation acts of various states upholding the option of an injured employee to rest the selection of the forum on any of the following grounds (2 Larson, Workmen's Compensation Law , § 86.10, p. 368):
"(1) Place where the injury occurred;
(2) Place of making the contract;
(3) Place where the employment relation exists or is carried out;
(4) Place where the industry is localized;
(5) Place where the employee resides; or
(6) Place whose statute the parties expressly ...