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Zelasko v. Refrigerated Food Express

Decided: June 24, 1992.


On certification to the Superior Court, Appellate Division.

O'hern, Wilentz, Clifford, Pollock, Garibaldi, Handler, Stein


The opinion of the court was delivered by


This is a workers' compensation appeal. The issue is whether an accident that occurs after working hours, while an employee is en route to park his trailer at an off-site parking area not furnished by the employer, is compensable. The vehicle owned by the employee had been used by the employee on business authorized by the employer during the work day. We hold that the accident does not fall within any of the statutory exceptions that allow an award of workers' compensation benefits while "going and coming" to and from a place of employment. Thus, we reverse the judgment below.


Although petitioner is bound by the factual findings of the workers' compensation Judge, we accept the version of facts set forth in his Appellate Division brief. Because the employee is referred to as the petitioner and the employer as the respondent in workers' compensation proceedings, we continue those references here.

Petitioner, George Zelasko (Zelasko or petitioner), drove a tractor-trailer for respondent, Refrigerated Food Express (Refrigerated or respondent). He was contractually required to own both the tractor and refrigerated trailer. During his off-duty hours, petitioner parked his tractor at his home in Jamesburg and his trailer in nearby Cranbury, on the property of an acquaintance. Jamesburg has an ordinance that bans overnight parking of a trailer. At the time of petitioner's injury, he had been employed by Refrigerated for thirteen years. Throughout that thirteen-year period, petitioner was required to submit a daily time log to Refrigerated. Petitioner's usual routine was to log in when he entered his tractor in the morning and then to drive to Cranbury to pick up the trailer. In the evening, after leaving the trailer in Cranbury, petitioner would log out after returning to Jamesburg in the tractor.

On Thursday, April 12, 1990, Zelasko made a delivery to Supermarkets General in Woodbridge in the tractor-trailer. After unloading the trailer, he drove to Refrigerated's terminal in Old Bridge. There he dropped off several pallets. Because his next scheduled delivery date was not until Monday, April 16, petitioner did not reload. Zelasko then left the terminal with approximately thirty pallets belonging to him and headed toward Cranbury.

While en route to Cranbury, petitioner heard the pallets "kicking around" in the trailer. Realizing that the pallets might cause damage to the refrigeration unit, Zelasko decided to pull over. However, he was unable to do so immediately because the highway he was traveling on was very narrow and there was heavy traffic in the area. According to petitioner, because he was near his home, he knew of an area where he could safely pull over. Zelasko left the highway and stopped his truck approximately 300-400 feet from his home. He then left the tractor and climbed into the trailer to secure the pallets. While standing at the edge of the trailer, Zelasko began to lose his balance and decided to jump to the ground. Unfortunately, he landed improperly and injured his left foot.

On June 14, 1990, Zelasko filed a claim petition with the Division of Workers' Compensation. Refrigerated denied that the injury was compensable. The compensation Judge dismissed petitioner's claim, finding that Zelasko had not been under Refrigerated's control at the time of the accident. The Judge reasoned that Zelasko "left his employer's control * * * when he drove out of the employer's parking lot on Thursday afternoon."

The Appellate Division, in an unreported opinion, reversed. Relying on the authorized-vehicle exception to N.J.S.A. 34:15-36, the panel held that at the time of the accident Zelasko had been driving an employer-authorized vehicle and that driving the vehicle to the overnight parking area was business authorized by the employer. We granted certification, N.J. (1991).


Recently, in Livingstone v. Abraham & Straus, Inc., 111 N.J. 89 (1988), we reviewed the "going and coming" rule of workers' compensation liability. We summarize the principles set forth therein.

Our original employees' compensation act did not contain a definition of employment. The Act simply allowed compensation when an employee was injured or killed in an accident "arising out of and in the course of employment." L. 1911, c. 95, § 7. Because of the "sweeping generality of the statutory terms," it became necessary for the courts to develop principles to distinguish between "those accidental injuries which may fairly be said to have some work connection and those which may fairly be said to be unrelated to the employment." Hornyak v. Great Atl. & Pac. Tea Co., 63 N.J. 99, 102 (1973). Thus, the courts developed the "going and coming" rule to differentiate between compensable and non-compensable claims. That rule ordinarily precluded an award of compensation benefits for "injuries sustained during routine travel to and from an employee's regular place of work." Watson v. Nassau Inn, 74 N.J. 155, 158 (1977). However, many exceptions to the basic "going and coming" rule had arisen. Id. at 159. In fact, those exceptions were so numerous that they "overshadowed" the basic rule. Ibid.

In 1979 the Legislature amended the Workers' Compensation Act in significant respects. L. 1979 c. 283. The legislative history of the Act suggests that the primary goals of that legislation "were to eliminate awards for minor partial disabilities, to increase awards for the more seriously disabled, and to contain the overall cost of workers' compensation." Perez v. Pantasote, Inc., 95 N.J. 105, 114 (1984) (citing Senate Labor, Indus. and Professions Comm., Joint Statement to Substitute for S.802 & A.840 at 1 (Nov. 13, 1979) (Joint Statement)). That new legislation contained a specific definition of employment, L. 1979, c. 283, § 12, which is now codified at N.J.S.A. 34:15-36. That definition is as follows: "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 * * *." Ibid. The Legislature continued:

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 an 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.


Thus, the Legislature stated its intent to "establish[] relief from the far-reaching effect of the 'going and coming rule' decisions by defining and limiting the scope of employment." Joint Statement, supra, at 2.

Although the question of off-premises accidents was not immediately addressed in the legislative history, the Chief Judge of Compensation stated in an article written shortly after enactment of the legislation that compensation for off-premises accidents was "sharply curtailed" by the new definition of employment. Alfred J. Napier, Impact of the Reform Act of 1980, 96 N.J. Lawyer 17, 18 (Summer 1981). He specifically construed N.J.S.A. 34:15-36 "to remove from compensability certain cases heretofore held compensable where special hazards existed en route to the employer's premises, [and] off-premises injuries sustained during lunch hour." Id. at 18. However, he warned that the "basic pattern and objectives of our Workers' Compensation Act remain unchanged." Id. at 17.

In a series of opinions, our Appellate Division has filled in the contours of those statutory provisions. Although we must take some liberties with the syntax of the statute, as a general rule we interpret the statute as not allowing compensation for accidents occurring in areas outside of the employer's control, as when the employee is ...

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