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Cooper v. Barnickel Enterprises

January 13, 2010

JESSE J. COOPER, SR., PETITIONER-RESPONDENT,
v.
BARNICKEL ENTERPRISES, INC., RESPONDENT-APPELLANT.



On appeal from the Department of Labor & Workforce Development, Division of Workers' Compensation.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: October 15, 2009

Before Judges Stern, Graves*fn1 and Lyons.

Barnickel Enterprises appeals from a judgment*fn2 of the Division of Workers' Compensation awarding a "100% disability for residuals of multiple compound comminuted fractures of both legs and left arm" suffered during an automobile accident in February 2003. As respondent employer Barnickel's master plumber and foreman, petitioner was authorized to use its truck to drive to and from home, and between job sites. On Saturday, February 8, 2003, after going to a job site, he went to the union hall in Winslow Township to discuss the plans for a new job, which was to start the following Monday, with one of two union instructors and to obtain a copy of a code referred to in the plans. Upon arriving at the union hall at approximately 11:15 A.M., petitioner discovered that the instructor he was looking for was teaching a class and talking with students. Petitioner felt he could not interrupt the instructor, and decided to take a coffee break and to return to the union hall at lunch time to talk to the instructor. Petitioner was driving his employer Barnickel's truck to a delicatessen about five miles away from the union hall when the accident occurred.

According to petitioner, coffee was not available at the union hall on Saturdays. He didn't "even know that there was a soda machine." Therefore, he went back to his truck, turned on the radio, and decided to go for coffee because he had "enough time to kill." Petitioner testified "I was going to kill some time, go get my coffee, come back and if I had time I'd sip it and when the class was over I could talk to John [the instructor] without interrupting him." The accident occurred about three to four miles from the union hall while petitioner was en route for the coffee.

The critical issue before us is whether the accident arose "in the course of" employment. N.J.S.A. 34:15-7. Barnickel argues that "the trial court's decision should be reversed because petitioner's motor vehicle accident did not arise out of and in the course of petitioner's employment with Barnickel." The finding of a permanent and total disability is not contested.

The judge of compensation found that, while waiting for the instructor, "petitioner took his regular paid coffee break and went to get some coffee up the road at a place he knew had good coffee."*fn3 The judge distinguished this case from Jumpp v. City of Ventnor, 177 N.J. 470 (2003), which he felt involved a "purely personal errand" because petitioner there had left his vehicle to retrieve his personal mail during business hours. He concluded petitioner engaged in "exactly the kind of brief activity which if embarked on by an inside employee working under set time and place limitations, would be compensable under the personal comfort doctrine." Alternatively, the judge found that "Mr. Cooper was on a special mission that was authorized by his employer" so that petitioner would be prepared for his project meeting the following work day.

Barnickel argues that "petitioner's decision to seek out his preferred type of beverage at an off-site location constituted a personal errand, wholly unrelated to his work activities," and, irrespective of authorization to use the vehicle, "petitioner was not engaged in business authorized by his employer when he ventured out from the union hall to a deli four or five miles away."

An employee is entitled to compensation for an accidental injury under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -142, if the injury "ar[ose] out of and in the course of employment." N.J.S.A. 34:15-7, Jumpp, supra, 177 N.J. at 476; Acikgoz v. New Jersey Tpk. Auth., 398 N.J. Super. 79, 87 (App. Div.), certif. denied, 195 N.J. 418 (2008); Stroka v. United Airlines, 364 N.J. Super. 333, 338 (App. Div. 2003), certif. denied, 179 N.J. 313 (2004). Regarding "employment," the Act provides:

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 and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.

[N.J.S.A. 34:15-36, L. 1979, c. 283, § 12, eff. January 10, 1980.]

In Jumpp, supra, 177 N.J. at 474, a city employee "was permitted to make brief stops at local establishments" while traveling between job sites in a city owned vehicle. He was nevertheless denied compensation for a fall suffered when he parked and left the vehicle with the motor running "to retrieve his personal mail from a local post office located on ...


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