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Brown v. American Red Cross

April 8, 1994

DOROTHY BROWN, PETITIONER-RESPONDENT,
v.
AMERICAN RED CROSS, RESPONDENT-APPELLANT, AND HANOVER INSURANCE COMPANY, INTERVENOR-RESPONDENT.



Judges Havey, Arnold M. Stein and Ariel A. Rodriguez.

The opinion of the court was delivered by: Havey, J.A.D.

Argued March 2, 1994

Respondent American Red Cross appeals from a judgment of the Division of Workers' Compensation in favor of petitioner Dorothy Brown. Petitioner, while employed by respondent, was injured in an automobile accident on her way home from one of respondent's blood-donor sites. The judge of compensation found that her injuries were compensable according to the definition of "employment" under N.J.S.A. 34:15-36, because she was receiving travel-time pay for her journey home. We agree and affirm.

As a phlebotomist, petitioner traveled to various sites in southern New Jersey on behalf of respondent to draw blood from donors. On July 1, 1988, she left her Atlantic City residence and traveled to a Mount Holly donor site approximately fifty miles away. She worked five hours, and on her way home she was involved in an automobile accident, sustaining multiple injuries. She thereupon filed the present claim petition seeking workers' compensation coverage. *fn1

Petitioner and a co-worker testified that when they were hired as phlebotomists they agreed to use their own vehicles to travel to and from the donor sites. In turn, respondent agreed to pay them $8 per hour for an eight- hour day despite the fact that they worked only five hours at the donor sites. Petitioner stated that payment of the additional three hours was understood by the parties to be "travel time" pay because she and other phlebotomists "had to pay for our own gas and our own upkeep of our car."

William Bailey, respondent's Director of Human Resources, testified in a deposition given during a related suit and introduced in the workers' compensation proceeding, that respondent had a written policy to pay for travel time:

If [phlebotomists] traveled over ... one half an hour they would be on the clock and paid. That would be an hour, half hour around, come back from the blood mobile bank site.

Bailey stated that the reason for the policy was to give phlebotomists travel- time pay and mileage because their willingness to travel substantial distances in their own vehicles benefitted respondent. He explained that:

[The phlebotomists] would have to travel throughout the regions' territory and we felt that since we could not provide transportation we would pay the mileage and the salary for the time so that they would not incur the expense.

Employees were also given twenty cents per mile.

In a January 18, 1989 letter to respondent's labor counsel, Bailey acknowledged that because petitioner was twelve miles from the Mount Holly donor site when the accident occurred, she was "on the clock and was paid ... for hours worked" after leaving the site.

However, during the workers' compensation proceeding, Bailey stated that respondent's written policy was not applicable because employees had to actually work over forty hours per week to receive compensation based on travel time. Respondent's Director of Donor Services also testified that the policy applied only to the computation of overtime. She further stated that the eight-hour guarantee was not intended to be a payment for travel time, but was simply a "perk" used as a recruiting technique.

Judge Lashman found that "travel was a part of the wage and all travel was included ... by payment for two or three hours in excess over actual time at the differing daily job sites." In so concluding, the judge determined that the testimony given by respondent's witnesses was of "dubious credibility."

The 1979 amendment to the Workers' Compensation Act adds a definition of "employment" (L.1979, c. 283, ยง 12), which ...


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