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Walsh v. Ultimate Corp.

Decided: March 17, 1989.

LANE WALSH, WIDOW OF KEVIN WALSH, PETITIONER-RESPONDENT,
v.
ULTIMATE CORPORATION, RESPONDENT-APPELLANT



On appeal from a final judgment of the Division of Workers' Compensation.

Shebell and Landau. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

[231 NJSuper Page 385] This is an appeal by the employer Ultimate Corporation, from a final decision of the Division of Workers' Compensation finding that Kevin Walsh, a deceased employee, died as a result of an accident which occurred during and in the course of his

employment. The compensation judge found that at the time of decedent's automobile accident the decedent was carrying out one of the assigned duties by his employer, namely, "to get acquainted with the country, the customs and people of Australia." The judge further found that inasmuch as the petitioner had additional work with him in his vehicle, and the accident occurred "before petitioner had an opportunity to reach a place where he could complete that work . . . his work day was still in progress at the time of the automobile accident." We hold that decedent was not engaged in the direct performance of his duties at the time of his accident and that the so-called "special mission" or "special errand" rule is not applicable under the facts proven.

Appellant presented no witnesses before the Workers' Compensation Court to refute the testimony offered on behalf of the petitioner-widow. The petitioner presented the testimony of two former employees of the appellant to establish that her deceased husband, who had begun employment with appellant in August of 1984 doing financial accounting, left on December 7, 1984 for Perth, Australia on an assignment which was to last until Christmas. Decedent's employer had asked him to move to Australia with his family for a period of approximately one year commencing in January of 1985. Decedent's primary task was to straighten out the "mess" in the Perth office. However, it was also felt by his supervisor that part of the benefit of this initial trip to Australia would be for decedent to travel about and enjoy the country to the end that he would be "enthusiastic upon his return from Australia [at Christmas] when discussing the move with his family." Thus, according to decedent's supervisor, they would all be encouraged to make the move, as decedent's wife was not excited about the idea because of its impact on the couple's two young children.

Decedent's supervisor was the Vice-President of Finance, the company's chief financial officer. He verified that the company would pay any and all expenses involved in the trip that were not exorbitant, including food, travel on location, hotel expenses

and the like. He also indicated that the employee knew that accepting the year in Australia would aid his career and that, although decedent would not be fired if he did not go, as the decedent's supervisor he would not feel the same about the employee if he did not respond when asked to make such a commitment on behalf of the company.

During telephone conversations from Australia to the United States, decedent's supervisor suggested that he go to particular restaurants and visit certain beaches and not stay in the office or hotel on weekends. On the day of his accident, decedent worked at the Perth office from 8 a.m. until noon or 1 p.m. and then went to lunch with other employees, following which he rented a car to travel to Wave Rock. Although it is not clear from the record, this appeared to be a rather substantial motor trip involving over two hours of driving. The decedent brought work with him from the office as he planned to work when he got to the hotel, go to sleep for the night and then go sight-seeing the next day before returning to Perth. As best as can be gleaned from the record, the employee did not make it to Wave Rock because of the automobile accident. The employee remained in a coma for many months and died on May 22, 1985.

N.J.S.A. 34:15-36 states in pertinent part:

Employment shall be 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 employer's place of employment, excluding areas not under the control of the employer; provided, however, when the employee is required by the employer to be away from the employer's place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by 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 Mangigian v. Franz Warner Assoc., Inc., 205 N.J. Super. 422, 425-26 (App.Div.1985), we traced the judicial expansion of the "going and coming" rule which had precipitated the Legislature to ...


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