On appeal from New Jersey Department of Labor and Industry, Division of Workers' Compensation.
Allcorn, Morgan and Horn.
The Division of Workers' Compensation found that decedent's accidental injury and death were unrelated to his employment and, accordingly, dismissed the dependency claim petition filed by petitioner decedent's widow, on her own behalf and for the two minor children of the marriage. Petitioner appeals challenging as inadequately supported the judge's conclusions that at the time of the accident, decedent was in the course of a deviation from the scope of his employment. Rather, she contends, that whether or not a deviation had occurred, it had terminated at the time when the accident occurred.
The factual information relevant to the principal issue raised is sparse because of decedent's lack of recollection
as to what occurred and his subsequent death. The facts which are reflected in the record are relatively free from dispute.
Decedent Anthony A. Correia was treasurer for respondent at its office in Fairview, New Jersey. He had the use of a company car to drive back and forth to work as well as to use for business purposes during the work day. In addition, he owned a personal car, a 1970 Lincoln (the accident vehicle), which he used approximately one day a week for work. Respondent provided decedent with the use of a gasoline credit card for both vehicles. The daily trip from his home in Union, New Jersey, to the Fairview office was usually made via the Garden State Parkway or the New Jersey Turnpike. Generally decedent would leave his home for work at about 9:30 a.m. and return from work between 7:30 and 8:30 p.m. It had not been unusual, however, for him to remain at work five or six times a month until 9:00 or 10:00 p.m. On one occasion years before he had worked all night.
On the morning of January 18, 1974 decedent drove to work in the company station wagon. That day he was to pick up the Lincoln from a garage where it had been taken for a tune-up. During the day he worked on a fare increase for respondent bus company which had a deadline and some tax returns. During the afternoon he advised his wife that he would be working late on the fare increase and to have dinner without him. Decedent was last seen at the office by the company personnel manager who left at about 5:30 p.m. At 10:30 p.m. petitioner's husband telephoned her, asked for the telephone number of a coworker, told her he would be working "quite late" and that she was not to wait up for him. At 11:00 p.m. and again at 11:30 p.m. petitioner attempted to reach her husband at his office by calling his private number, but received no answer. Nothing else is known of decedent's activities until the time of the accident.
According to the police report, at 3:50 a.m. on January 19, 1974 decedent, in his 1970 Lincoln, hit a pole while proceeding on the ramp leading to the Parkway south from Route 17 in Paramus, New Jersey. It was snowing and the ramp was icy. From the late afternoon of January 18, 1974 until 10 a.m. January 19, 1974 there was a sleet and freezing rain storm. However, all of the state highways in the area were salted, traffic movement and speed were normal, and there were no reported tie-ups. Decedent was unable to remember anything about the accident or where he was before he died as a result of his injuries on February 11, 1974.
The judge found that were it not for the unexplained circumstances the case would fall into the payment for transportation exception to the going-and-coming rule and decedent's death would be compensable. However, he further found that the accident occurred some eight miles north of any normal route home for decedent, his whereabouts after 10:30 p.m. were not known, and there was no factual testimony as to why decedent was at the site of the accident. Therefore, he held that because of the unexplained deviation "the petitioner has not, by a preponderance of probabilities, borne the burden of proof in proving a work-connected accident."
In making the required determination as to whether the disposition of the dependency claim petition by the judge of compensation is reasonably supportable on the basis of the whole record before him, Kaplowitz v. K & R Appliances, Inc. , 108 N.J. Super. 54 (App. Div. 1969), certif. den. 55 N.J. 452 (1970), we are hampered by the absence of specific findings on factual issues relevant to the conclusion reached. Hence, although the judge properly concluded that the exception to the going-and-coming rule based upon employer-borne expenses of travel to and from the place of business was ...