June 19, 2013
AUDREY KERNAN, Petitioner-Appellant,
STATE OF NEW JERSEY, Respondent-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 28, 2013
On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2011-30401.
Raymond P. Shebell argued the cause for appellant (Shebell & Shebell, LLC, attorneys; Mr. Shebell, of counsel and on the brief).
Stephanie L. Meredith, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Robert Lougy, Assistant Attorney General, of counsel; Ms. Meredith, on the briefs).
Lynne P. Kramer, General Counsel, argued the cause for amicus curiae New Jersey Advisory Council on Safety and Health.
Before Judges Sabatino and Maven.
Appellant Audrey Kernan (petitioner) appeals the April 3, 2012 decision of the Division of Workers' Compensation (Division), which denied her motions for recusal and change of venue, as well as dismissed with prejudice her claim petition for medical benefits arising from an alleged work-related automobile accident. For the reasons that follow, we affirm.
Petitioner had been an administrative supervisory judge for the Division since 2009. The record indicates that at the time of her accident, petitioner was one of four administrative supervising judges in the Division. She supervised the Atlantic City, Bridgeton, Camden and Toms River offices. Her duties entailed direct supervision of the supervisory judges in her vicinages, as well as general oversight of all court operations and judicial activities in these regions. Her primary office location was Atlantic City, but she was afforded three days every three weeks to visit the other regional offices. On August 31, 2011, petitioner sent an email to her immediate supervisor, the Director and Chief Judge of the Division (the Chief Judge), and the Supervising Judge of the Camden vicinage (the Camden Supervising Judge), the latter whom she herself supervised, advising them that she would conduct an office visit in Camden on September 13, 2011.
On September 13, 2011, at approximately 8:05 a.m., while driving her vehicle en route from her Ocean City home to the scheduled Camden site visit, petitioner was involved in a motor vehicle accident in Egg Harbor Township in Atlantic County. According to petitioner's testimony, she swerved off the road and struck two poles, in order to avoid a head-on collision with an unidentified vehicle that had come across the roadway. Her medical proofs indicate that she sustained severe injuries, including head trauma, post-concussion syndrome, vertigo, cervical radiculopathy, lumbar radiculopathy, myofascial pain syndrome, neurological pain syndrome, and a sleep disorder.
Petitioner subsequently took a medical leave of absence from the Division. The administrative supervisory judge from New Brunswick assumed petitioner's job responsibilities in addition to her own.
On November 11, 2011, petitioner electronically filed a claim petition for workers' compensation benefits, alleging that her injuries were sustained by an accident arising out of and in the course of her employment, thereby compensable under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128. In its answer, the State denied that petitioner sustained a compensable accident or occupational exposure arising out of and in the course of her employment with the Division and thus denied that she was legally entitled to payments of temporary or permanent disability benefits. Petitioner filed a motion for temporary and/or medical benefits for payment of her treatment expenses on December 15, 2011, which the State also opposed.
The Division removed the matter from Atlantic City to New Brunswick. According to the State, petitioner's case was transferred out of the region she supervised to avoid having it heard by any of her subordinates. Instead, the Division arranged to have the case heard by another administrative supervising judge having petitioner's same level of authority.
Prior to the February 15, 2012 hearing, petitioner moved for a change of venue back to Atlantic City and for the hearing judge's recusal. As to the latter point, petitioner raised concerns that the hearing judge had a conflict of interest because she reported directly to the Chief Judge and now supervised the Camden Supervising Judge, both of whom petitioner was calling as witnesses. Petitioner also raised concerns that the hearing judge had personal knowledge of her circumstances, having taken on petitioner's regional supervisory duties after the accident.
At the outset of the February 15, 2012 proceeding, the hearing judge heard argument regarding petitioner's venue and recusal motions. The hearing judge denied the motions, stating that she could make a decision that was "true, equitable and impartial." The hearing judge then received the testimony of petitioner and her two witnesses; the State did not present any witnesses.
On April 3, 2012, petitioner's claim petition was dismissed with prejudice and her motion for temporary and/or medical benefits was denied. In her oral decision, the hearing judge found that petitioner had failed to meet the requisite burden of proof of a compensable work-related injury. In particular, the hearing judge concluded that petitioner did not receive any wages for her travel time during a routine commute to work. This appeal followed.
I. JUDGE  ERRED IN HER REFUSAL [TO] CHANGE VENUE
II. JUDGE  ERRED IN HER REFUSAL TO RECUSE HERSELF BELOW
III. PETITIONER'S ACCIDENT ON SEPTEMBER 13, 2011 WAS COMPENSABLE UNDER THE NEW JERSEY WORKERS'COMPENSATION ACT.
A. Petitioner's Accident Arose Out of and in the Course of Her Employment Pursuant to N.J.S.A. 34:15-7.
B. In the Alternative, Petitioner's Accident is Compensable as Satisfying an Exception to the 'Going and Coming' Rule.
We first briefly address petitioner's arguments concerning venue and disqualification of the hearing judge. Because these issues are interrelated, we consider them together.
Petitioner maintains that the proper venue under N.J.S.A. 34:15-53 was Atlantic City because (1) the accident occurred in Atlantic County; (2) she resides in Cape May County; and (3) Atlantic City is where she initially filed her claim.Petitioner further argues that it was improper for her case to have been assigned to the hearing judge in New Brunswick because of that judge's alleged conflict of interest, and that her case should have been assigned to a different compensation judge, or alternatively to a retired compensation judge, or perhaps heard in the Superior Court.
Venue is not a jurisdictional issue but rather a procedural matter that implicates both the efficient administration of justice and the convenience of the parties. See State, Dep't of Environmental Protection v. Middlesex Cty. Bd. of Chosen Freeholders, 206 N.J.Super. 414, 420 (Ch. Div. 1985), aff'd o.b., 208 N.J.Super. 342 (App. Div. 1986) (DEP); see also N.J. Thoroughbred Horseman's Ass'n v. State, 348 N.J.Super. 125, 136 (Ch. Div. 1990). "Accordingly, an action may be transferred from one venue to another where the convenience of parties and witnesses is not served by strict application of the venue rules." DEP, supra, 206 N.J.Super. at 420.
With respect to matters of recusal or disqualification, Rule 1:12-2 states that "[a]ny party, on motion made to the judge before trial or argument and stating the reasons therefor, may seek that judge's disqualification." See N.J.A.C. 12:235-10.7 (reciting the grounds for disqualification in the compensation court). It is well-settled, however, that "[r]ecusal is a matter entrusted in the first instance to the discretion of the . . . judge himself." Hundred E. Credit Corp. v. Eric Schuster Corp., 212 N.J.Super. 350, 358 (App. Div. 1986); see Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:12-2 (2013); see also Magill v. Casel, 238 N.J.Super. 57, 63 (App. Div. 1990). The denial of a motion seeking recusal is reviewed under "an abuse of discretion standard." See Panitch v. Panitch, 339 N.J.Super. 63, 71 (App. Div. 2001).
The hearing judge explained the reasons for the denial of petitioner's venue and recusal motions first in her oral decision of April 3, 2012, and then in an amplified written decision dated May 10, 2012. In her amplified written decision, the judge explained that in accordance with the Division's long-standing policy:
Employees who work in the hearing offices have their cases assigned to the closest possible vicinage that does not present a conflict. Employees are sometimes temporarily assigned to other vicinages and in that circumstance, their case would be heard outside of their regular vicinage and any temporarily assigned vicinage. In this case, the petitioner was assigned to Atlantic City and had supervisory authority over Bridgeton, Camden and Toms River. It would be inappropriate to assign her case to any of these vicinages. It would be inappropriate to assign her case to any of the judges who she supervised. It would be inappropriate to assign her case to a supervising judge or a trial judge in the Division because of the potential that someday the petitioner could be their supervisor.
Our Workers' Compensation court is a court of statutory construction and is limited in jurisdiction. It is the only court with the authority to hear cases for injuries/conditions that arise out of and in the course of employment. There is no other court available to hear cases for employees of the Division. The Division must, out of the necessity, hear these cases.
This policy cited by the hearing judge for the handling of claims brought by other compensation employees and judges is a reasonable one. Applying that policy, there were only three administrative supervising judges who could hear petitioner's case. Given that one of those three judges recused herself, the matter was logically assigned to the administrative supervising judge located nearest to petitioner in New Brunswick. Although the Division conceivably could have assigned the hearing to that third judge in a more distant location, doing so would have further inconvenienced petitioner. Since all of the administrative supervising judges report to the Chief Judge, who petitioner called as a witness, the rule of necessity applies to any compensation judge who would hear his testimony. DePascale v. State, 211 N.J. 40, 45 (2012); In re P.L. 2001, Chapter 362, 186 N.J. 368, 393 (2006) ("The rule of necessity forbids the disqualification of the entire judiciary from hearing a case even if there is some perception that the result may be tinged by self-interest."). We also discern no requirement under these circumstances to assign this case to a retired judge, who also presumably is under the Chief Judge's administrative and fiscal authority. Nor is there any statutory authority to have this case heard in the Superior Court, given that the compensation court is a special court of exclusive jurisdiction established by statute. See N.J.S.A. 34:15-49.
We are likewise unpersuaded that the hearing judge's interim supervisory authority over the Camden Supervising Judge after she assumed petitioner's duties post-accident compelled her disqualification, per se. As we have noted, reassignment of the case to the most distant administrative supervising judge would have imposed more inconvenience. In addition, the pivotal dispute over compensability in this case fundamentally hinges upon principles of law rather than diametrically-competing narratives of fact witnesses. Upon our review of the record, we conclude that petitioner's claims of conflict are insufficient to demonstrate that the hearing judge would not be fair and impartial. We therefore have no basis to disturb that determination.
Consequently, we conclude that the denials of the motion to transfer venue back to Atlantic City and for disqualification were neither arbitrary, capricious, nor unreasonable.
We turn to the question of whether, as a matter of law, petitioner's injuries are compensable under the Workers' Compensation Act. Petitioner argues that her claim is compensable either because her accident "arose out of and in the course of employment, " pursuant to N.J.S.A. 34:15-7, or alternatively, because the accident satisfies an exception to the "going and coming" rule. Neither of these arguments has merit.
Petitioner contends that since her employer directed her to make these site visits, her accident and any resulting injuries should be compensable.
N.J.S.A. 34:15-7 provides, in relevant part, that
[w]hen employer and employee shall by agreement, either express or implied, as hereinafter provided, accept the provisions of this article compensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of employment shall be made by the employer without regard to the negligence of the employer . . . .
A claimant must show that: (1) she sustained an injury "in the course of employment;" and (2) the injury "arose out of" her employment. See N.J.S.A. 34:15-1. "The 'arising out of' portion refers to causal origin, and the 'course of employment' portion refers to the time, place, and circumstances of the accident in relation to the employment." Valdez v. Tri-State Furniture, 374 N.J.Super. 223, 232 (App. Div. 2005) (citations omitted). Courts make this determination on a case-by-case basis. Nemchick v. Thatcher Glass Mfg. Co., 203 N.J.Super. 137, 143 (App. Div. 1985).
To determine if an injury arose out of and in the course of employment, the court must examine whether a causal connection exists between the employment and the injury based upon three considerations of risk. Prettyman v. State, 298 N.J.Super. 580, 591 (App. Div. 1997). The first, known as the "but for" test, looks at "whether it is more likely than not that the injury would have occurred in the workplace rather than somewhere else." Ibid. "An accident arises in the course of employment when it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time." Id. at 593 (citations omitted) (internal citation marks omitted).
The hearing judge in this case specifically found that "this accident did not occur within a period of employment nor in a place where the employee might be reasonably expected to be, or during the reasonable fulfillment of her duties of employment." At 8:05 a.m., it was reasonable to determine that petitioner was en route to work and not yet at work. She was not expected to begin work until 9:00 a.m. Although the record indicates that petitioner would be reimbursed for her mileage and travel expenses, there is no proof that her commute to Camden before 9:00 a.m. was part of her actual work day. Therefore, the hearing judge's finding was appropriate.
Second, there are "neutral risks" defined as "uncontrollable circumstances which do not originate in the employment environment but which happen to befall the employee during the course of his employment." Verge v. County of Morris, 272 N.J.Super. 118, 127 (App. Div. 1994) (quoting Howard v. Harwood's Restaurant Co., 25 N.J. 72, 84 (1957)). Such circumstances include "acts of God." Ibid. This provision is not at issue in this case.
Third, there are risks that "do not bear a sufficient causative relationship to the employment . . . [because they are] personal to the claimant." Ibid. These risks "cannot be said to arise of the employment." Ibid. This third category is also applicable here.
Petitioner was involved in an automobile accident at 8:05 a.m. - nearly one hour before she was required to report to work. Arguably, this accident could have happened anywhere. Petitioner's argument that her employer required her travel to work does not offer a sufficient causal nexus. Generally, injuries suffered as a result of commuting from home to work, or vice versa, are not compensable. N.J.S.A. 34:15-36.
Alternatively, "accidents occurring outside areas controlled by the employer are typically not compensable." Valdez, supra, 374 N.J.Super. at 233. Therefore, there was a sufficient legal basis to deny her claim.
Furthermore, there is no evidence to establish that petitioner confronted any "special hazards" posed by the State during her travel to the Camden site or in its control. See New Jersey Mfrs. Ins. Co. for Smith v. Pub. Serv. Elec. & Gas Co., 234 N.J.Super. 116, 121 (App. Div.), certif. denied, 118 N.J. 178 (1989); see also Cressey v. Campus Chefs, Div. of CVI Serv., Inc., 204 N.J.Super. 337, 344 (App. Div. 1986). As such, this exception does not apply here.
Ultimately, the hearing judge's finding was amply supported by the record and the governing principles of law. Petitioner's accident did not arise out of or in the course of employment and, therefore, was not a compensable claim under N.J.S.A. 34:15-7.
Petitioner next asserts that the accident was compensable under an exception to the "going and coming" rule. She asserts that, on the day of her accident, she was engaged in a "special" visit to Camden required by her employer, where "she had to travel over [sixty] miles to Camden as compared to her normal [ten-]mile commute to Atlantic City." The State argues that because the accident occurred before petitioner arrived to work, her claim is barred by the "going and coming" rule.
As stated above, N.J.S.A. 34:15-36 generally bars recovery for injuries suffered commuting to and from work. In relevant part, the provision states:
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 . . . .
This provision was previously termed the "going and coming" rule,  but it is now known as the "premises" rule. Scott v. Foodarama Supermarkets, 398 N.J.Super. 441, 446-47 (App. Div. 2008). With few exceptions, N.J.S.A. 34:15-36 limits compensability to those injuries sustained on the employer's premises. Because the injury did not occur on the employer's work sites, petitioner would not be entitled to benefits unless she satisfied an exception. Brower v. ICT Group, 164 N.J. 367, 371 (2000).
First, the "special mission" exception provides coverage for accidents occurring in areas not under the employer's control if: (1) the employee is required by the employer to work at a job site distant from her regular place of employment, Zelasko v. Refrigerated Food Express, 128 N.J. 329, 336 (1992); and (2) the employee is either in the direct performance of her assigned duties or, engaged in an activity "sufficiently substantial to be viewed as an integral part of the work itself." Nemchick, supra, 203 N.J.Super. at 141 (citation omitted); see Zelasko, supra, 128 N.J. at 336.
Petitioner asserts that her place of employment was Atlantic City and she was traveling to another job site in Camden as directed by her employer. This argument is unavailing. In her capacity as an administrative supervisory judge, petitioner was required to make periodic site visits to other regional offices; therefore, she had "places of employment" in each locale. Petitioner advised the Chief Judge that she would be in Camden on her "next office day" on September 13, 2011. Although the Chief Judge acknowledged her email by replying, "That's good, " we determine that such a response is not tantamount to him mandating her visit on that particular day. Her normal working hours began at 9:00 a.m. and ended at 4:00 p.m. At the time of accident, petitioner was engaged in a regular commute to one of her places of employment to begin the work day.
The hearing judge found that petitioner's "district office was Camden" and that she was en route on a routine supervisory visit. In order to arrive in Camden by 9:00 a.m., petitioner had to leave earlier than her usual commute to the Atlantic City office. If, hypothetically, the accident had occurred during work hours in a trip from the Atlantic City office to Camden, her injuries may well have been compensable. This is so because petitioner would then have been driving "on business authorized by the employer" during normal working hours and receiving her salary for that time. N.J.S.A. 34:15-36. Since petitioner was traveling directly from home to work, this exception does not apply to her circumstances as this was a routine, albeit periodic, commute.
The second exception, known as the "travel time" exception, concerns injured employees who are: "(1) paid for travel time to and from a distant job site, or (2) using an employer-authorized vehicle for travel time to and from a distant job site." Zelasko, supra, 128 N.J. at 336; see N.J.S.A. 34:15-36. In Nebesne v. Crocetti, we determined that "[r]egardless of make- whole reimbursement for expenses a traveling employee is not in the course of his [or her] employment and any accident does not arise out of that employment unless the employee is receiving employment wages for the time thus spent traveling" 194
N.J.Super. 278 281 (App Div 1984) (emphasis added); see Scott supra 398
N.J.Super. at 447
Petitioner was not paid a wage for her travel time She was only reimbursed for travel expenses ie mileage and toll charges The judge correctly found that "payment for mileage [was] not the equivalent of paid travel time" Moreover petitioner was in her personal automobile when the accident occurred and not a state-owned vehicle Therefore the second exception also does not apply
In conclusion the record and the applicable legal principles support the finding that petitioner's unfortunate accident occurred during her commute to work. She was not injured in the course of her employment as the work day had not yet begun and she has failed to satisfy any exception to the "going and coming" rule Therefore her claim was deemed not compensable The hearing judge made an appropriate determination to deny her claim