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Perry v. State

December 27, 1996


On appeal from Final Judgment of the Division of Workers' Compensation.

Approved for Publication December 27, 1996.

Before Judges Shebell, Baime and Braithwaite. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by


Respondent, The State of New Jersey, Department of Law and Public Safety, Division of State Police, appeals from the award of Workers' Compensation benefits to petitioner, Trooper Patricia Perry. We reverse and remand.

Petitioner filed a claim petition on May 16, 1994 for a back injury which she sustained while shoveling out her unmarked State Police troop car that was in her driveway, where it was stuck in the snow. Hearings were held on September 11, October 2, October 23 and November 13, 1995. At the close of the evidence, the Judge found petitioner's injury occurred within the course of her employment and fixed her permanent disability at thirty percent of partial total.

The accident and injury occurred on February 15, 1994. The parties stipulated that petitioner was employed as a detective with the State Police. Her hours were normally 8:00 a.m to 4:00 p.m. or 9:00 a.m. to 5:00 p.m., unless something unusual, such as surveillance, was taking place. It appears that, at the time of the accident, she regularly reported to work at the training academy in Sea Girt, going to Trenton only once a week, although on occasion she worked from her home. Petitioner was assigned a vehicle which she was required to use during the course of her work.

The injury occurred on the day petitioner was returning to work from her vacation. It had snowed while she was on vacation and her troop car became stuck in the snow as she tried to back out of her driveway. It took petitioner about five to ten minutes of shoveling and labor to free her car from the snow. When she straightened up, she experienced pain on her right side, from her buttocks to her ankle, so much that she had to balance herself on the car. When the pain subsided, she finished moving her car and went to work. She reported the injury to her supervisor the next day, when she went to Trenton. Because of continuing disability, petitioner had an MRI on February 24, 1994 that showed that she had a herniated right disc of the lumbar spine at the L5-S1 level. After surgery and a course of therapy, she returned to light-duty in July and to full-time duty on December 1, 1994.

The Judge explained his finding of a compensable accident as follows:

The facts are uncontested that petitioner is a New Jersey State Trooper and as such is required to drive a marked state car. She took the car home with her as she was allowed to do. On the morning of the accident, she was getting ready to report to work, but it had snowed overnight. The car was stuck in the snow. She began to dig the car out when she injured her back resulting in the ... diagnoses set forth hereinabove by me. There is no doubt in my mind that she in fact was [acting within the scope of her employment]. She is not allowed to use the car, the marked state police car, for any other purpose other than work .... She was digging the car out so that she could go to her assigned duties directly with that car. That car was necessary for her to perform her duties and she was charged with the care and custody of that car which in effect belonged to the State. In order to perform her duties she had to free the car from the snow and at that time she injured her back which resulted in the condition which is before me. ... She traveled to and from work in an employee-owned [sic] vehicle which is compensable as per N.J.S.A. 34:15-36.

The sole issue before us is whether petitioner was acting within the scope of her employment when she injured her back while shoveling snow in her driveway in order to drive her troop car to work. The State urges that the "going and coming rule" under N.J.S.A. 34:15-36 should govern to prevent petitioner from getting Workers' Compensation benefits.

A decision of an administrative agency such as the Division of Workers' Compensation should be reviewed under the standard set forth in Close v. Kordulak Brothers, 44 N.J. 589, 210 A.2d 753 (1965). The Supreme Court found that the findings of an administrative agency must be supported by "'sufficient credible evidence present in the record.'" Id. at 599 (quoting State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964)). The Court further explained that when reviewing an agency determination, "due regard [should be given] to the agency's expertise where such expertise is a pertinent factor." Id. at 599.

However, when an appellate court is reviewing the ultimate determination, a different standard is utilized. An appellate court should "not upset a determination by [an agency] in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies ...." Campbell v. Dept. of Civil Service, 39 N.J. 556, 562, 189 A.2d 712 (1963). Since the State alleges that the determination ...

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