July 1, 2008
SHIRLEY JOHNSON-TUCKER, PETITIONER-RESPONDENT,
PLAINFIELD BOARD OF EDUCATION, RESPONDENT-APPELLANT.
On appeal from the Division of Workers' Compensation, Department of Labor, Claim Petition No. 2003-35817.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 9, 2008
Before Judges Cuff, Lisa and Simonelli.
This is a workers' compensation case. The sole issue is whether the compensation judge erred in finding compensable under the special mission rule petitioner's injuries, sustained while eating breakfast in the restaurant of the hotel at which she was staying during an out-of-state convention she was required to attend by her employer. See N.J.S.A. 34:15-36. We find no error and affirm.
After a trial, the compensation judge made these factual findings, which are well supported by the record. See Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Petitioner, a school principal, was required by her employer, the Plainfield Board of Education (BOE), to attend a five-day conference in Savannah, Georgia. The instructional training sessions would take place at the convention hotel, but that hotel lacked sufficient rooms for all attendees. Therefore, a number of hotels were available for attendees. Petitioner stayed at one of them, the Marriott Riverfront Hotel, which was across the water from the convention hotel. Petitioner was transported to and from the convention hotel by a ferry boat each day.
The BOE paid her salary while she was attending the convention, and it paid her airfare for travel. The BOE also paid for the hotel accommodations and provided payment for food while petitioner was at the convention. Petitioner ate breakfast each morning at her hotel, and then proceeded by water taxi to the convention hotel for training classes.
On the morning of January 24, 2003, petitioner followed her usual routine and went down to breakfast. She sat down at her table and the chair collapsed, causing her injuries.
Based upon these facts, the compensation judge found that petitioner was on a special mission for the BOE. He found it significant that she was there for multiple days and "was expected to sustain herself by eating." She was provided money for meals and would be expected by her employer to eat breakfast as part of her mission, all of which was "part of her attendance at this convention." The judge reasoned that the petitioner was supposed to be at the hotel. She was supposed to travel from her hotel to the convention center everyday to take these classes. Breakfast was part of her daily activities. It was paid for and expected to be part of the daily activities.
The breakfast in the hotel was incidental to and in the direct performance of her job duties, when she is sent away to another city [to] attend classes at a convention center. . . . One would not expect her to be able to handle a full day of work sessions without having breakfast, and she was placed in a strange dining room maintained and controlled by strangers. She was there at the request of and the demand of her employer. It is part of her job duties. It was part of her responsibility to attend the convention and incidental to that attendance of that convention. Clearly, the injury was in the course of the employment and certainly arose out of the employment. She would not have been in this situation but for the fact that the company had sent her to this conference as part of their responsibility to maintain themselves as an Abbott School District. I find this injury to be compensable. I find it to have arisen out of and in the course of her employment.
The controlling section of the Workers' Compensation Act provides in relevant part that 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. [N.J.S.A. 34:15-36.]
The BOE argues that the compensation judge's application of this provision to the facts of this case was impermissibly overbroad. The BOE argues that petitioner was engaged in a purely personal activity while eating breakfast, and not engaged in the direct performance of the duties assigned or directed by her employer. Accordingly, the BOE argues that the injuries are not compensable. We do not agree.
The special mission rule has been defined as follows:
When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself. [Nemchick v. Thatcher Glass Mfg. Co., 203 N.J. Super. 137, 141 (App. Div. 1985) (quoting 1 Larson, Workmen's Compensation Law, § 16.10 at 4-123, (Bender 1984)).]
Application of the rule must be resolved on a case-by-case basis. Id. at 143.
In Nemchick, the petitioner was required by his employer to report to an off-premises location, in-state but about fifty miles from his usual workplace, to perform work-related duties on one day. Id. at 140. On his way home, after working through the night and traveling on unfamiliar roads, the petitioner blacked out at the wheel and was involved in an accident. Ibid. We viewed the circumstances as falling within that intended by the Legislature to fit within the special mission rule, noting that the petitioner was sent a significant distance to an unfamiliar place, was required to work long hours, and "[t]he inconvenience, disruption of petitioner's normal daily routine, and, no doubt, enhanced exposure to hazard because of weariness and fatigue would not have ensued but for the work-related assignment, the benefits of which inured exclusively to respondent." Id. at 143. Thus, we concluded that the "petitioner's entire journey home was 'sufficiently substantial to be viewed as an integral part of the service itself.'" Ibid. (quoting Larson, Workmen's Compensation Law, supra, § 16.10 at 4-113).
In another case, we similarly held that an employee required by his employer to travel out of state who was injured in a motor vehicle accident on the way to the airport came within the special mission rule. Ehrgott v. Jones, 208 N.J. Super. 393, 397 (App. Div. 1986). We found it "obvious" that paid travel to and from an out-of-state meeting was so integral to attending the meeting as to constitute part of the overall special mission. Id. at 398. We noted that while an employee is away at such a meeting, if he or she is not engaged in the direct performance of assigned duties when an injury occurs, the special mission rule would not apply and the injury would not be compensable. Id. at 398-99. That requirement, however, did not preclude compensability for the injury suffered during required travel to the meeting. Ibid.
The BOE relies upon our decisions in Mangigian v. Franz Warner Assoc., 205 N.J. Super. 422 (App. Div. 1985), and Walsh v. Ultimate Corp., 231 N.J. Super. 383 (App. Div.), certif. denied, 117 N.J. 92 (1989). Unlike Nemchick and Ehrgott, those cases did not involve travel to or from the off-premises work site, and we found that the requirements of the special mission rule were not satisfied.
In Mangigian, an off-premises employee completed her work day and returned to her motel at about 8:00 p.m. Mangigian, supra, 205 N.J. Super. at 424. After engaging in personal activities at the motel, she went out at about 10:00 p.m. for a late night snack, and while out she was injured. Ibid. We concluded that the petitioner "had fully completed her work assignment and was safely ensconced in the motel before she decided to embark upon a purely personal errand." Id. at 428. As such, this conduct could not be viewed as part of her special mission.
Similarly, in Walsh, the employee was sent by his employer to Australia for a three-week stint, anticipated to be followed by a one-year assignment, if the employee would accept it. Walsh, supra, 231 N.J. Super. at 386. While there during the three weeks, the employee worked one day from 8:00 a.m. until about noon or 1:00 p.m., after which he went on a sightseeing trip. Id. at 387. While sightseeing, he was killed in an automobile accident. Ibid. We concluded that "even though the initial assignment may be viewed as temporary, the decedent had established a new 'place of employment,' within the contemplation of N.J.S.A. 34:15-36, when he arrived in Perth and assumed control of the office." Id. at 390. Notwithstanding the contention that the decedent had with him in the car work he intended to do when he reached his destination and that he was encouraged by his employer to travel around Australia and familiarize himself with it in the hope that he and his wife would be more likely to accept the one-year assignment, we concluded that the decedent was simply not on duty at the time of his accident for either of those reasons. Ibid. His sightseeing trip was purely a personal venture.
The personal deviations from the special mission that existed in Mangigian and Walsh were of the type to which we averted in Ehrgott, which would not fit within the special mission rule. See Ehrgott, supra, 208 N.J. Super. at 399. In our view, the circumstances in this case materially differ from those in Mangigian and Walsh, and are more akin to those in Nemchick and Ehrgott. Petitioner was where she was supposed to be, doing what she was supposed to do, in conformity with the directions of the BOE, when her accident happened. She was in her designated place of lodging, and engaging in a necessary function occasioned by a multi-day assignment, namely eating a regular meal. This was not a situation in which she left the designated premises to go shopping, sightseeing, or engaging in some other personal activity. Nor was it an after-hours off-premises trip for a late night snack.
Our conclusion is bolstered by our Supreme Court's discussion of the minor deviation rule in Jumpp v. City of Ventnor, 177 N.J. 470 (2003). The Court there found that an employee, whose normal work duties required him to drive around to different sites during the course of the day, who stopped along the way to pick up his personal mail from a local post office and was injured while doing so, was on a purely personal deviation from his work assignment and his injuries were not compensable. Id. at 474, 484. The Court held that when an employee is assigned to perform off-premises work, "eligibility for workers' compensation benefits generally should be based on a finding that the employee is performing his or her prescribed job duties at the time of the injury." Id. at 482. Nevertheless, the minor deviation rule survived, albeit in a more restrictive form, since the 1979 amendments to the Workers' Compensation Act. Id. at 473.
The Court made clear that the standards applicable to satisfy the "in the direct performance of their duties" requirement applied equally to on-premises and off-premises employees. Id. at 483. "Employees who are where they are supposed to be, doing what they are supposed to be doing, are within the course of employment whether on- or off-premises, except when they are commuting." Ibid. And, even post 1979, the minor deviation rule allows off-premises employees to enjoy the same ability to deal with certain basic needs enjoyed by on-premises employees, such as phone calls to babysitters and physicians as well as coffee and lunch breaks." Ibid. Those activities materially differ from such things as shopping excursions during lunch hour or a visit to a travel agent, even if in the employee's building, to plan a personal vacation. Ibid.
In the context of a multi-day off-premises assignment, the Court's analysis would include, in our view, not merely a lunch break during work hours, but all regular meals eaten at designated locations where the employee is required to be as part of the special mission. Eating, unlike picking up one's personal mail, is an "indispensable human function." Id. at 479. Like eating lunch during a single work day, eating breakfast was a necessary aspect of petitioner's multi-day assignment. The necessity would not have ensued but for the BOE's requirement that petitioner attend the convention, which was, of course, for the BOE's benefit. This activity was sufficiently substantial to be an integral part of the overall special mission.
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