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Frank Delle Donne v. Shiki Japanese Steakhouse of Middletown

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, ยง 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 ...


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