On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Nos. 2011-12961 and 2011-13395.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Lihotz.
These two cases, consolidated on appeal, challenge separate provisions of a December 5, 2011 order entered following a hearing to review claims for workers' compensation benefits. The workers' compensation judge (WCJ) awarded petitioner-employee Michael Tumolo medical and temporary benefits paid by respondent-employer the Ocean County Road Department (Department), but denied Tumolo's petition for benefits payable by the Borough of Seaside Park (Seaside), where he served as Fire Chief.
The Department appealed the order, Docket No. A-2162-11, challenging the WCJ's finding that Tumolo was on a "special-mission" and not commuting to work at the time he sustained injury in the April 5, 2011 automobile accident. The Department maintains it has no obligation to provide workers' compensation benefits, as the facts show Tumolo was commuting to work when injured in the accident.
In the related case, Docket No. A-2392-11, Tumolo challenges the dismissal of his petition for benefits sought from Seaside, arguing the WCJ erred in concluding he was not eligible for benefits. Tumolo states at the time of the accident, he was driving a vehicle owned and insured by Seaside, wore his firefighter's pager, and "on call," making him available to Seaside to respond to a fire emergency.
Following our review, we reverse that portion of the December 5, 2011 order awarding Tumolo benefits for his injuries to be paid by the Department. We affirm the provisions of the December 5, 2011 order dismissing Tumolo's petition for benefits from Seaside.
Tumolo is a heavy equipment operator employed by the Department, which operates approximately six garages throughout Ocean County (the County) to perform road repairs and renovation projects undertaken by the County. Several Department garages store equipment and vehicles used by Department employees. Each Department employee must report to his or her assigned supervisor at a designated garage every morning at 7 a.m. to receive an assignment to a County project assigned to the Department, on an as-needed basis. Employees must take Department vehicles to each job site and return them to the Department's garages at the end of each day.
Tumolo began his employment with the Department as a laborer in June 2005. Over the next two years, he reported to his supervisor, Glen Harrington at the Miller Air Park garage. As part of a pipe crew, Tumolo reported every day and was sent to a project in the County performing storm water maintenance. He received a written memorandum, transferring him to the Toms River garage for approximately one year. The pipe crew was disbanded and, by written memorandum he was instructed to report to supervisor Rich Emery at the Jackson garage, effective December 11, 2008, at 7 a.m.
Tumolo never received a written memo reassigning him to another location and specifically acknowledged he had not received similar written instructions to report to Ocean County College (OCC). Further, he acknowledged he "never worked for the college."
Tumolo testified in 2009, Emery directed him to operate heavy equipment like dump trucks, backhoes, and loaders, to clear roughly fifty acres to build an addition, parking lots and retention basins at OCC. Tumolo testified he was "told to go out [to OCC] every day, unless otherwise told to do so." Over a period of two years, Tumolo drove directly from his home in Seaside to OCC, except on days when it was snowing, raining too hard, if the Department was shorthanded, or when demands of other projects took priority. Emery was replaced by Deborah Sloan in early 2011.
Frank Runza, the general supervisor responsible for overseeing supervisors and special projects, including the OCC project, confirmed Tumolo was assigned to the Jackson garage and worked at OCC on an as-needed basis when the weather was not inclement. Runza and Steve Childers, superintendent of the Department, stated the Department policy required all workers to drive to their assigned garage, park their vehicle, and drive a Department vehicle to the assigned work site. Runza asserted in 2009, Tumolo reported to the Jackson garage the "majority" of the year. The OCC project began in September 2009, halted in December 2009, and then began again in March or April 2010. Runza explained the scope of the project required he use as many available workers from the Department. He also admitted Tumolo could have coordinated with Emery as his immediate supervisor, to drive directly to the OCC work site; however, he understood this arrangement did not begin until 2011, when he asked Tumolo to arrive at the OCC site to start up the equipment prior to the crew's arrival. Sloan confirmed Tumolo began driving directly to OCC in 2011.
In January 2011, Tumolo also became Seaside's Fire Chief. In that position, when a fire emergency occurred he would receive a message on his Motorola pager and respond to the location to immediately marshal necessary fire resources to resolve the emergency. As Chief, Seaside provided Tumolo a 1996 Chevy Tahoe truck designated as the "chief's truck[.]" Tumolo would drive the chief's truck when he was in the area and able to respond to a fire emergency. If Tumolo was paged while working for the Department, he requested and was given permission to leave by his supervisor. Tumolo was charged vacation time when he left his job site to respond to a fire emergency.
The evening before the accident, Runza instructed Tumolo there was a problem and he was to report to his supervisor at the Jackson garage until the problem was resolved. The "problem" was identified in an April 1, 2011 email sent by Sloan to Runza at 2:09 p.m. Sloan wrote:
It has come to my attention that Mike Tumolo is taking his own/assistant fire vehicle to the college instead of going to the TR garage . . . and riding in a county vehicle and also leaving when everyone does but doesn't go to the garage. I know you take you [sic] special treatment to people who are firemen or Masons but it's [sic] not fair for everyone else. Also, since Dean & Tommy were in Jackson today[,] I expected Mike [Tumolo] to be there. I'm sure if he was [sic] at the college he would have had . . . a boat or chest waders.
Sloan was recalled as a witness to explain the email's contents because the document was not provided until after she had completed her initial testimony. She explained it had rained heavily on April 1 and two other Jackson employees, who had been assigned to the OCC project, returned to the garage in the afternoon when the work was halted because it was too wet and muddy, but Tumolo did not return. Sloan emailed Runza when she discovered this discrepancy. Runza did not receive the email until April 4, 2011, at which time he told Tumolo to report to his supervisor at the Jackson garage the following day and called Sloan confirming he relayed the instructions.
Sloan was also asked about her comments suggesting Tumolo received preferential treatment. She stated Runza "takes care of guys that are firemen and, as they say it, have a ring, which is the Masonic ring." Sloan was never able to address the issues with Tumolo because of the accident.
On April 5, 2011, Tumolo was driving to the Jackson garage operating the chief's truck. At approximately 6:30 a.m., while traveling north on Whitesville Road, Tumolo's truck was struck head-on by an on-coming vehicle, which had crossed the center line. Tumolo was extracted from the wreck, hospitalized for significant injuries, and later underwent surgery to repair his shattered femur. He returned to work on December 5, 2011.
In his limited statement of reasons, the WCJ credited Tumolo's testimony and found Sloan "ha[d] not been forthright" and had been "spurious" in reporting "a problem" with Tumolo's work performance. In discussing Sloan's credibility, the WCJ further determined her comments exhibited biases, as "[f]or one to castigate volunteer firemen or Masons, as did Miss Sloan, the court finds that to be in rather poor taste." The WCJ concluded Tumolo "was on an errand outside the scope of his regular duty[,]" found to be a heavy equipment operator who "regularly worked at the county college." Citing only Mannes v. Healey, 306 N.J. Super. 351, 358 (App. Div. 1997) -- which is not a workers' compensation case, but a vicarious liability action analyzing liability of an employer for an employee's negligent act based upon agency and, therefore, distinguishable from this matter -- the WCJ determined Tumolo "was required to be away from the [OCC] work site, which was his usual work site" and "[t]he direct performance of his duties appeared to be happening at the [OCC] work site." The WCJ concluded Tumolo was engaged in conduct that fell outside the going and coming rule, entitling him to medical and temporary benefits paid by the Department.
Regarding the claim for benefits paid by Seaside, the WCJ rejected Tumolo's assertion that he was carrying his firemen's pager and was prepared to respond to any fire emergency. The WCJ found Tumolo had not established he was involved "in any activity that could be construed as a public fire duty" as there was no "connection between the operation of the motor vehicle on Whitesville Road on the date in question" and his position with Seaside, as the WCJ found Tumolo was solely responding to "a special request" at the Jackson garage and was then expected to return to the OCC worksite. Accordingly, the operation of the chief's truck could ...