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In the Matter of Rocco Colella

April 29, 2011

IN THE MATTER OF ROCCO COLELLA, MOTOR VEHICLE COMMISSION.


On appeal from a Final Administrative Decision of the Civil Service Commission, Docket No. 2009-1088.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 29, 2011

Before Judges Carchman and Messano.

Rocco Colella appeals from the final decision of the Civil Service Commission (the Commission) denying his request for sick leave injury (SLI) benefits. We granted the Commission's motion, and Colella's cross-motion, to supplement the agency record. Having considered the arguments raised in light of the supplemented record and applicable legal standards, we affirm substantially for the reasons expressed in the Commission's order of December 3, 2009.

The facts are undisputed. On July 17, 2008, Colella was employed by the Motor Vehicle Commission (MVC) as a Commercial Bus Vehicle and Driver Test Administrator. As such, he was required to drive from his home to the particular site where he was to conduct an inspection. Colella was assigned an MVC-owned van equipped with the necessary tools, instruments and computer equipment to perform the inspections.

On the day in question, Colella logged on the computer at 7:05 a.m. and proceeded to drive from his home in Bridgeton to his first assignment in Cape May. Approximately thirty minutes later, while en route, he was involved in a motor vehicle accident in Port Norris. He suffered several injuries, including a compression fracture of his T2-T3 vertebrae. Following the accident, Colella underwent surgery and was never medically cleared to return to work. His surgeon suggested that Colella consider early retirement, which he requested effective January 1, 2009.

In the interim, Colella applied for SLI benefits. On August 28, 2008, MVC denied his request citing N.J.A.C. 4A:6-1.6(e)(1), which provides: "For the injury to be compensable, it must occur during normal work hours or approved overtime . . . . Injuries which occur during normal commutation between home and the work station or home and a field assignment are not compensable." Colella appealed the decision to the Commission and requested a plenary hearing.

Citing N.J.S.A. 34:15-36, Colella argued that he was in the course of his employment when the accident occurred because he was required to use his MVC-issued vehicle to drive to the inspection site and perform the duties assigned by his employer. He contended that he was working at the time of the accident and entitled to SLI benefits.

The Commission initially deemed Colella's request for a hearing to be unnecessary because there was no "material and controlling dispute of fact." See N.J.A.C. 4A:2-1.1(d) ("Except where a hearing is required by law or these rules, or where the Commissioner . . . finds that a material and controlling dispute of fact exists that can only be resolved by a hearing, an appeal will be reviewed on a written record."). Citing N.J.A.C. 4A:6-1.6(e)(1), the Commission concluded: [Colella] was commuting between home and a field assignment at the time of the accident . . . . Whether [he] was in his personal vehicle or one owned by the State has no bearing on this determination. Moreover, the fact that he had "clocked in" is immaterial given the rule cited.

The Commission entered the order under review.

Before us, Colella argues that he had no "'normal' work hours" and was injured during work hours approved by his supervisor. Further he contends that his MVC-issued vehicle was his "'work premises'" as defined by regulation; therefore the injuries did not occur "'during normal commutation' between home and a field assignment." Lastly, he cites as authority N.J.S.A. 34:15-36, which defines "employment" in relevant part as follows:

[W]hen 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 . . . who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling ...


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