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Valcarcel v. FSA Management Co.

March 14, 2007

HECTOR VALCARCEL, PETITIONER-APPELLANT,
v.
FSA MANAGEMENT CO., INC., RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 6, 2006

Before Judges Collester and Sabatino.

Petitioner Hector Valcarcel appeals a March 13, 2006 final judgment of the workers' compensation court dismissing his claim arising out of a motor vehicle accident. The dismissal was based upon the court's determination that petitioner was not acting in the scope of his employment when the accident occurred. We affirm.

The pertinent facts that emerged at the two-day workers' compensation trial are largely not in dispute. In April 2000 Valcarcel accepted an offer of employment with respondent FSA Management Co., Inc. ("FSA"). FSA is in the business of managing residential apartments in various locations. FSA hired Valcarcel to work as superintendent of its apartment complex in Bridgewater. Occasionally, FSA required Valcarcel to perform maintenance at other apartment complexes it owned and operated. FSA supplied Valcarcel with the use of a company vehicle, a Ford pickup truck. FSA also provided Valcarcel with an apartment unit at the Bridgewater complex, where he resided.

In addition to his work as a superintendent for FSA, Valcarcel operated a private home remodeling business. That personal business required Valcarcel to travel to various job sites. The trial testimony reflects that Valcarcel's supervisor at FSA, Kevin Seltzer, was aware of Valcarcel's side business. However, neither Seltzer nor Valcarcel testified that Seltzer had permitted Valcarcel to pursue his side enterprise during FSA's business hours, which were generally 8:00 a.m. to 4:00 or 4:30 p.m. Nor did Seltzer allow Valcarcel to use FSA's company truck for his personal business. Seltzer did acknowledge, however, that on one occasion Valcarcel was asked to drive the company truck to deliver masonry materials to the home of Seltzer's father in Jersey City. The record further reflects that Seltzer did allow Valcarcel at times to use the truck for personal, non-business uses such as getting lunch.

On March 29, 2001, Valcarcel needed to travel from FSA's premises in Bridgewater to its separate property in Highland Park.*fn1 Valcarcel got into the company truck. However, instead of driving straight to Highland Park, Valcarcel diverted his route and stopped at a private job site in Plainfield where he had been remodeling a private residence. After Valcarcel left that job site, he was involved in a motor vehicle accident in Plainfield.

Valcarcel was injured in the accident, and filed a workers' compensation petition against FSA. FSA denied responsibility for Valcarcel's injuries, contending that Valcarcel was outside the scope of his employment for FSA when the accident occurred.

After hearing the trial testimony of Valcarcel and Seltzer, Judge Joel Gottlieb of the Division of Workers' Compensation ruled that Valcarcel was not entitled to coverage. In his oral decision of March 13, 2006, Judge Gottlieb found that Valcarcel "was on personal business when he was involved in the accident in question." The judge further noted that "[b]y his own admission, the job in Plainfield was in no way related to his employment, nor did [Valcarcel] have permission to use the vehilce for that use that day." Invoking the standards of Jumpp v. City of Ventnor, 177 N.J. 470, 482 (2003), the judge concluded that Valcarcel had not "embarked on a personal errand that would have been compensable if carried out by an on-premises employee." Consequently, the judge dismissed Valcarcel's petition.

On appeal, Valcarcel contends that the compensation judge erred in his factual findings and also misapplied the law. We disagree.

Our scope of review is limited. With regard to the facts, we must simply "examine the record to determine whether sufficient or substatial credible evidence exists therein to support" the administrative tribunal's decision. Dore v. Bd. of `Educ., 185 N.J. Super. 447, 453 (App. Div. 1982). See also Lindquist v. City of Jersey City Fire Dep't., 175 N.J. 244, 262 (2003). We also must be satisfied that the decision on review comports with the applicable law, recognizing the expertise of the compensation court in interpreting and applying the statutes within its purview. Lindquist, supra, 175 N.J. at 262. The compensation judge's "findings and legal determinations" should be sustained unless they are "manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Ibid.

The pertinent statutory provision here is N.J.S.A. 34:15-36, which was enacted in 1980. It defines the worker's scope of employment, for purposes of compensation coverage, 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; 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 ...


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