On October 12, 2022, in an unpublished decision by the Superior Court Appellate Division, the Courts once again followed the practice of finding greater coverage for course and scope of employment issues with a traveling employee. In Keim v. Above All Termites and Pest Control, the Appellate Division reversed the Decision of the Workers’ Compensation Judge (WCJ) and found the petitioner’s injuries while driving to work and involved in a motor vehicle accident to be compensable under the Act.
The facts of the case were not in dispute. They were only two witnesses, the petitioner and the owner of Above All. The petitioner was a salaried employee working as a pesticide applicator. He traveled from his home in a company assigned vehicle to residential and commercial properties where he applied pesticides and performed other pest control techniques. He and other company employees drove their company owned vehicles home at the end of each day.
Keim obtained the pesticides that he used at the various worksites at the employer’s shop in Forked River. It was a key fact that the employer directed employees not to carry large quantities of pesticides and supplies in their company assigned vehicle since the chemicals should not be exposed for long periods to either heat or cold and also wanted to avoid the risk of them being stolen. As a result, employees like Keim would often directly go to the employer’s job site to obtain the pesticides necessary for work that day if the supplies they had were insufficient. Kiem testified that the owner preferred that they pick up the supplies in the morning for that workday and not allow them to remain in the assigned vehicle overnight.
On the date of the accident, Keim was on his way to the shop to replenish his supplies for jobs assigned that day. He was involved in a serious motor vehicle accident sustaining an injury to his head.
The WCJ was faced with both a Motion to Dismiss and a Motion for Medical and Temporary Benefits. The Judge dismissed the claim finding that the petitioner was not acting within the course and scope of his employment at the time of the accident but was merely commuting to work. The WCJ relied upon the case of Chisolm-Cohen v. The County of Ocean, Department of Emergency Services, 231 N.J. Super. 348, 352 (App. Div. 1989). The WCJ concluded that simply driving to the employer’s office was commuting under Section 36 of the statute and thus injuries sustaining were not compensable.
The Appellate Division reversed the WCJ’s Decision and found compensability. They agreed with the petitioner’s argument that he was, in fact, performing duties required by the employer. He was not simply commuting to work but driving to the shop to obtain necessary supplies for the workday. He was doing so in a company vehicle.
The statute specifically states that an employee is in the course of his employment if he is utilizing an employer authorized vehicle while traveling either to and from a job site or on authorized business by the employer. The petitioner did not work at nor have an office in the employer’s office location but rather simply went there to obtain supplies for the day. The job site might as well have been a warehouse and the petitioner was a traveling employee headed to that warehouse. The Court found it significant that the petitioner was operating an authorized vehicle on business authorized by the employer with respect to the directive that the employees only carry a limited quantity of supplies in their assigned vehicles. The petitioner was instructed by the owner to restock supplies in the morning and was on his way to do so when the accident occurred.
The Court distinguished this fact pattern from the Chisolm-Cohen case easily. At the time of her motor vehicle accident, the employee was driving a County owner's car but was simply on her way home to change clothes after normal work hours had ended and before nighttime training was to begin. She was not performing a work related function or task but simply returning home. The case was reversed and remanded for adjudication of benefits.
COMMENT: The fact pattern seems to be much more similar to Wilkins v. Prudential Insurance and Financial Services, 338 N.J. Super. 587 (App. Div. 2001). In that case, the petitioner was a commissioned salesman. He essentially worked out of his home but occasional reporting for meetings at the employer’s offices. On the date of the accident, he completed a sale but needed to obtain signatures from the customer and a required envelope that was at the employer’s location. He drove to the employer’s location to obtain this necessary special envelope and fell in the parking lot.
Similar to the facts, in this case, the Court held that the petitioner was required to work away from a conventional place of office and that he was engaged in the direct performance of his duties when he was driving to the employer’s offices to obtain necessary supplies. Keep in mind that employees that do not have a conventional place of employment and use a company vehicle have a much greater cloak of coverage for accidents off-premises.