For reversal and remandment -- Justices Mountain, Sullivan, Pashman and Handler. For affirmance -- Justices Clifford and Schreiber. The opinion of the court was delivered by Pashman, J. Clifford, J. dissenting. Justice Schreiber joins in this opinion.
In the early evening of September 20, 1973, while en route home from his place of employment at the Fedders Corporation plant and office facility in Edison Township, Peter J. Sabat was killed in an automobile accident on Route 206 in Bedminster Township. His wife, Roberta Sabat, instituted this proceeding on July 6, 1974 by filing a dependency claim petition with the Division of Worker's Compensation on behalf of herself and her three minor children. In an oral opinion, the judge of compensation denied her petition, holding that the "going and coming" rule precluded the award of compensation benefits for her husband's fatal accident. The Appellate Division affirmed the Division's determination in an unreported per curiam decision. We granted certification. 73 N.J. 63 (1977).
Both determinations below were rendered prior to our recent decisions in a quartet of cases outlining the current contours of the going and coming rule. Watson v. Nassau Inn, 74 N.J. 155 (1977); Wyatt v. Metropolitan Maintenance Co., 74 N.J. 167 (1977); Paige v. City of Rahway, 74 N.J. 177 (1977); Briggs v. American Biltrite, 74 N.J. 185 (1977). This appeal was held for consideration in light of those decisions. We have concluded that the disposition of this case is controlled by the rationale of Paige v.
City of Rahway, supra. Accordingly, we reverse the judgment of the Appellate Division and hold that petitioner is entitled to compensation benefits.
On the date of his death, petitioner's husband was employed by Fedders in a managerial capacity with the company's data processing division, a position to which he had been promoted from the job of computer programmer in 1972. He was charged with the task of designing computer programs and was also responsible for the supervision of some twenty employees engaged in similar endeavors. Sabat was classified as an "exempt" employee by Fedders, which meant that he received an annual salary with no deductions for sickleave or additional compensation for overtime work. Although he was expected to be at work for the regular business day (8:30 A.M. to 4:30 P.M.) during his normal Monday to Friday workweek, he had no fixed hours of work and was required to put in whatever additional time the job required.
No public transportation was available between the Sabat home in Flanders, New Jersey and the Fedders' offices. Most Fedders' employees drove to work in their personal automobiles and parked in lots provided by the employer. Sabat drove his own car on his daily trip to work which consumed approximately an hour each way. The company provided no reimbursement for his commuting expenses.
Petitioner testified that her husband's work schedule was irregular because he was often called at home by computer operators working on the second and third shifts at Fedders. She indicated that problems were constantly arising, necessitating either decedent's staying late at the office, giving directions to subordinates over the phone or returning to work during the night to resolve the particular difficulty himself. By her estimate, her husband had been required to return to the office in the evenings at least 50 times during the period of his employment at Fedders. On some occasions he was called back to work as soon as he arrived home; other times he was required to work through the night. In a typical week he would receive several phone
calls at home seeking his assistance. To facilitate his handling of such unexpected problems, he kept copies of the computer programs at home so as to be able to give instructions to the computer operators back at the office. In addition, he frequently brought excess work home with him to be done in the evening.
On the date of the accident, petitioner spoke to her husband in the early afternoon. He indicated that barring any unforeseen problems, he would be home on time for what he anticipated would be an evening of relaxation. Judging from the time, 6:00 P.M., and place of the accident, Sabat left work between 5:00 and 5:30 P.M. He died on a highway that was part of his normal commuting route. One of the effects recovered from decedent's car was his attache case containing papers which resembled a Fedders computer printout.
The findings of fact by the judge of compensation were in general accord with petitioner's account of her husband's employment responsibilities and his activities on the date of the accident. He found that Sabat had been "subject to call at all times" although he was not compensated for this extra duty. He also found that decedent's fatal trip home was solely for personal purposes notwithstanding the fact that he was carrying business-related papers in his attache case. While conceding that Sabat often did work at and from his home and was frequently called back to his office, the compensation judge relied upon Morris v. Hermann Forwarding Co., 18 N.J. 195 (1955) for the requirement that the trip home of an employee who performs work at home must be " for the purpose of doing work for the employer * * *" in order to establish compensability under an exception to the going and coming rule. 18 N.J. at 200 (emphasis in original). The fact that the employee is carrying ...