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Frank Delle Donne v. Shiki Japanese Steakhouse of Middletown

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 18, 2011

FRANK DELLE DONNE, PETITIONER-APPELLANT,
v.
SHIKI JAPANESE STEAKHOUSE OF MIDDLETOWN, RESPONDENT-RESPONDENT.

On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Claim Petition No. 2009-13341.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 21, 2011

Before Judges Axelrad and Ostrer.

This workers' compensation appeal requires us to construe the "going and coming rule," which generally bars recovery for injuries suffered commuting to and from work. Petitioner suffered serious injuries in a motor vehicle accident on his way to work at a restaurant that he owned through a corporation, which employed him as president. He argues that the "going and coming rule" does not apply because he was traveling earlier than usual, when there was a heightened risk of accidents, in order to attend an important business meeting. We disagree and affirm.

Petitioner filed a workers' compensation claim on May 18, 2009, seeking recovery for injuries suffered in a motor vehicle accident on August 7, 2008. Respondent moved to dismiss on September 30, 2009. After bifurcating the issues of liability and damages, the court held an evidentiary hearing on liability on August 11, 2010; heard argument on September 22, 2010; and rendered an oral decision on November 3, 2010, dismissing the claim with prejudice.

Petitioner was the sole stockholder of a corporation that conducted business as the Shiki Japanese Restaurant in Middletown Township. The restaurant was not thriving and petitioner was scheduled to meet a real estate professional at the restaurant at 10:00 a.m. on August 7, 2008 to discuss selling the restaurant and the real estate. Petitioner scheduled the meeting at 10:00 a.m. before employees arrived, to prevent them from learning that he was contemplating a sale.

To avoid arriving late for the meeting, petitioner left his home in Bridgewater Township around 8:00 a.m. He intended to take his usual route to work, which included traveling on Interstate 287. His departure time was over two hours earlier than his regular time, which varied but usually enabled him to arrive between 10:45 a.m. and 11:30 a.m. Petitioner conceded that he controlled his own hours. Although he generally tried to get to work before opening time to set an example for his workers, his son was the restaurant's full-time manager. Petitioner admitted that, if he wished, he could have conducted his meeting with the real estate professional during regular business hours.

The parties each introduced expert reports, and jointly introduced the police report. The experts did not testify. Petitioner's engineering expert did not dispute the conclusion in the police report that petitioner "lost control for unknown reasons," left his lane of travel, and was struck by a vehicle that had tried to avoid him. Petitioner's vehicle then struck a disabled truck parked on the side of the highway. Petitioner suffered head injuries and could not recall the accident. Petitioner's expert opined, based on traffic and accident statistics, that "there would be approximately 1.5 to 1.9 times greater risk of being involved in an accident traveling on I-287 in Middlesex County, NJ, during morning rush hours of 7 a.m. to 9 a.m. as opposed to leaving at 10 a.m."

Respondent's expert observed that there was no evidence that petitioner's accident was related to, or caused by the traffic volume. Respondent's expert noted that although accidents may be more likely during high-traffic-volume rush hours, the accidents are also typically less serious, "low speed rear-end type crashes as opposed to more serious, higher speed crashes . . . when traffic volume is lower." Thus, given the nature of petitioner's accident, which did not involve a rear-end hit, respondent's expert opined that there was no evidence that the time of travel was a contributing cause of petitioner's accident.

In a well-reasoned oral opinion, Compensation Judge William Lake concluded that petitioner's injuries were not compensable as he was traveling to work. He held that, given the nature of the accident, petitioner had not established that it was related to any increased accident risk at rush hour. The judge further held that petitioner's earlier departure to work did not take him outside the "going and coming rule," as he traveled along his usual route to his usual workplace.

Petitioner appeals and argues that the "going and coming rule" does not apply because (1) petitioner was injured while acting under special directions of his employer to arrive early to work; and (2) he was performing a "special mission" to meet the real estate professional and faced an enhanced risk of injury because of his travel time. We are unpersuaded.

Our standard of review is well-settled. We are bound by the compensation judge's fact-findings that are supported by substantial credible evidence in the record. Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We must give due regard to the compensation judge's expertise when that is a factor. Ibid. Moreover, petitioner bears the burden to establish the compensability of his claim. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 279 (2003); Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

The Workers' Compensation Act provides for compensation for accidental personal injuries "arising out of and in the course of employment. . . ." N.J.S.A. 34:15-1, -7. The Legislature first defined "employment" in L. 1979, c. 283, § 12 expressly to exclude regular commutation to and from work. "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. . . ." Ibid. (codified at N.J.S.A. 34:15-36).

The Legislature also recognized an exception for off-premises missions, providing that an employee acts "in the course of employment" when the employee is both (1) "required by the employer to be away from the employer's place of employment," and (2) "engaged in the direct performance of duties assigned or directed by the employer. . . ." Ibid.

In its 1979 enactment, the Legislature intended to undo judicial decisions establishing various exceptions to the "going and coming rule," which otherwise provided that injuries incurred while traveling to and from work were not compensable. Ward v. Davidowitz, 191 N.J. Super. 518, 521-22 (App. Div. 1983) (discussing legislative history of L. 1979, c. 243).

Petitioner indisputably suffered his injuries before he "arrive[d] at [his] . . . place of employment to report for work." N.J.S.A. 34:15-36. We find inapplicable the "special mission" exception to the "going and coming rule" as discussed in Nemchick v. Thatcher Glass Mfg. Co., 203 N.J. Super. 137 (App. Div. 1985). Nor are we persuaded that petitioner must be deemed to have been acting in the course of employment simply because he chose to arrive at work early for a special meeting. Neither Sager, supra, nor Lozano v. Frank DeLuca Constr., 178 N.J. 513 (2004), cited by petitioner, compel a different result.

In Nemchick, the petitioner had completed his regular work-day at his usual worksite at 5:00 p.m. He was directed to report to a different worksite, fifty miles away, no later than 10:30 p.m. He went home briefly and then traveled to the second site, where he worked from 10:00 p.m. until 8:00 a.m. He was then injured on his way home.

Affirming the compensation judge's finding of compensability, we held that the Legislature intended to preserve the so-called "special mission" exception to the "going and coming rule" and the exception applied to the case. Under that "special mission" exception, a worker is deemed to be acting within the course of employment [w]hen an employee, having identifiable time and space limits on his employment, makes an off-premises journey . . . [if] 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. [Id. at 141 (quoting 1 Arthur Larson, Workmen's Compensation Law, (1984) § 16.10 at 4-123).]

In finding that the "special mission" exception retained vitality, we relied in part on the language in section 36, N.J.S.A. 34:15-36, 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. . . ." In contrast to the "special mission" exception, which the Legislature preserved, we concluded that the Legislature intended to undo those prior decisions that held injuries compensable simply "where special hazards existed en route to the employer's premises." Nemchick, supra, 203 N.J. Super. at 141 (quoting Napier, "Impact of the Reform Act of 1980," 96 N.J.L.J. 17 (August 1981)).

On three levels, we find Nemchick inapplicable to this case. First, in claiming that he faced heightened risk of a motor vehicle accident by traveling early to work, petitioner alleges simply that he faced "special hazards . . . en route to the employer's premises." Id. at 141. This was just the kind of exception to the "going and coming rule" that we found was foreclosed by the 1979 enactment. Second, the "special mission" exception does not apply because, unlike the petitioner in Nemchick, petitioner here was not required "to be away from the employer's place of employment." N.J.S.A. 34:15-36. He was on his way to his usual workplace.

Third, even applying Dean Larson's formulation of the "special mission" exception, which is broader than the statutory language in section 36, petitioner's injuries are not covered.

Petitioner set his own hours, which varied from day to day. Thus, he did not have "identifiable time and space limits on his employment." Nemchick, supra, 203 N.J. Super. at 141 (quoting 1 Arthur Larson, Workmen's Compensation Law, (1984) § 16.10 at 4-123). Also, merely by traveling to work a little early, he did not face "a special . . . hazard . . . sufficiently substantial to be viewed as an integral part of the service itself." Ibid. The compensation judge so found, in concluding that any risk of traveling during the heavy rush hour was not a contributing cause of petitioner's accident.

We also reject petitioner's argument that his injuries must be deemed compensable because he directed himself to attend the early meeting, and thereby faced the heightened risk of a rush-hour accident. Neither Lozano, supra, nor Sager, supra, cited by petitioner, support petitioner's position.

In Lozano, supra, the Supreme Court held that "when an employer compels an employee's participation in an activity generally viewed as recreational or social in nature, the employer thereby renders that activity work-related as a matter of law." 178 N.J. at 518. The petitioner in that case was a general laborer for a masonry contractor who performed work at a residence. The petitioner alleged that after he completed his masonry work for the day and while awaiting a ride home from the residence, his boss directed him to ride one of the customer's three go-karts. The petitioner crashed and suffered injuries. The Court's decision rested on its interpretation of N.J.S.A. 34:15-7, which generally excludes recovery when "recreational or social activities . . . are the natural and proximate cause of the injury[.]"

The Lozano Court held that the petitioner's injuries fell outside the scope of uncovered recreational or social activities because the employer compelled participation. However, in this case, the mere fact that petitioner's employer - himself - directed that he arrive early for a business meeting, does not make his injuries compensable. Were that alone a basis for compensability, the "going and coming rule" as codified in section 36 would be rendered meaningless, as most employers direct employees to appear for work at appointed times. Lozano was injured while participating in the employer-directed activity - riding a go-kart. Here, petitioner was injured while commuting to the employer-directed activity - meeting with the real estate professional.

Sager, supra, is likewise inapplicable. In that case, the petitioner had completed his regular workday on September 11, 2001 at a job-site on Long Island, New York, but could not travel home because the bridges were closed in the aftermath of the terroristic attack that day. The petitioner's supervisor decided that he and others would continue to work at the job-site. At the supervisor's direction, the petitioner and co-workers left the site to get dinner before returning to work. The petitioner was injured when their van was involved in a motor vehicle accident.

The Court found that the petitioner's injuries were compensable because the evidence, including the supervisor's testimony, supported the conclusion that the petitioner was "acting under the direction of his employer when the automobile accident occurred." Id. at 165. Based on that reading of the record, the Court's conclusion was consistent with section 36, as the petitioner was "required by the employer to be away from the employer's place of employment" and was "engaged in the direct performance of duties assigned or directed by the employer." N.J.S.A. 34:15-36.

In contrast, petitioner here was not required to be away from the restaurant, which was his usual worksite. Nor was his commute to work, albeit earlier than usual, the "direct performance of duties assigned or directed by the employer." In short, he may not avail himself of any viable exception to the "going and coming rule."

Affirmed.

20111018

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