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Scott v. Foodarama Supermarkets

February 27, 2008

DALE SCOTT, PETITIONER-RESPONDENT,
v.
FOODARAMA SUPERMARKETS, RESPONDENT-APPELLANT.



On appeal from the Department of Labor, Division of Workers' Compensation, 2006-015290.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: January 7, 2008

Before Judges Collester, C.S. Fisher*fn1 and C.L. Miniman.

Foodarama Supermarkets (Foodarama) appeals from an order requiring it to pay temporary disability and medical benefits to its employee, petitioner Dale Scott, based on a finding of a work-related accident. We reverse.

Scott is one of ten salaried, undercover loss-prevention officers for Foodarama. He and the other officers are required to work at least forty-eight hours per week and are not paid any additional compensation for work in excess of forty-eight hours. His time is clocked from check-in to departure. Foodarama is a chain of twenty-four supermarkets throughout central New Jersey and Scott was assigned to stores on a rotating basis so that he would not become familiar to shoppers. Scott is reimbursed for gasoline, tolls and out-of-pocket expenses. He also receives $200 a month for wear and tear on his car and that amount is included in his salary. He is entitled to reimbursement for gasoline for his entire round trip from home to work and back as well as trips between stores during his workday. Scott testified that "when I leave my house I'm technically working." No one testified on behalf of Foodarama.

On the night of November 11, 2005, Scott was traveling home from work and was involved in an accident. He injured his right knee and lower back, fractured his nose, and lacerated his spleen, requiring surgical removal. He moved for temporary disability and medical benefits and the judge conducted a plenary hearing at which the judge determined that Scott was acting in the course of his employment at the time of the accident because he was paid by the mile.

Foodarama contends on appeal that Scott was not paid wages for his travel time but only expenses and thus was not within the course of his employment traveling to and from work. It asserts that the judge of workers' compensation incorrectly applied N.J.S.A. 34:15-36 to the facts of this case.

The standard for appellate review of a determination of a judge of compensation is equivalent to that used for review of any non-jury case. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997) (citations omitted). We may not substitute our own fact-finding for that of the judge of compensation, even if we are inclined to do so. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Rather, we will only decide "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole.'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation omitted). This court must give "due regard to the opportunity of the one who heard the witnesses to judge of their credibility[,]" and, where an agency's expertise is a factor, give due regard to that expertise. Ibid.

In De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973), we recognized that appellate review is limited "to a determination of whether the findings of the judge of compensation could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to his expertise in the field and his opportunity of hearing and seeing the witnesses."

The Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 defines "course of employment" as follows:

Employment shall be deemed to commence when an employee arrives at the employee's place of employment to report to 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 the employer for time spent traveling to and from a job site . . . shall commence and terminate with the time spent traveling to and from a job site . . . . [N.J.S.A. 34:15-36 (emphasis added).]

The statute recognizes two types of employment. "On-premises employment (as its terminology directly implies) begins when the employee gets to the place where he or she works (to the premises), and ends when the employee leaves that place; off-premises employment, however, relates to the doing of the work 'assigned or directed by the employer.'" Jumpp ...


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