What is a Special Mission and Does a Violation of Company Orders Constitute a Defense to a Claim?

11.29.22

Category: New Jersey

In a tragic case involving significant injuries, the petitioner Gregory Van Sciver was injured when a tank filled with acetylene gas exploded in his car. After trial, a workers' compensation judge found that the accident arose out of and in the course of the petitioner's employment and his injuries were compensable. Respondent Jersey Mechanical Contractors, Inc. appealed from the order awarding the petitioner workers' compensation benefits. Because there was substantial credible evidence supporting the compensation judge's finding that the petitioner was on a special mission for his employer when the accident occurred, the court of appeals affirmed on November 15, 2022.

The petitioner did not have a formal job description and was instead assigned various tasks. The petitioner would meet with Robert Butler, the founder’s son, at the main facility at the beginning of a workday and Mr. Butler would provide the petitioner with a list of tasks to be completed that day. Those tasks usually included using a Jersey Mechanical truck to make deliveries to the company's jobsites. The petitioner often delivered tanks of acetylene gas, known as B-Tanks.

On September 29, 2020, Mr. Butler directed the petitioner to perform several tasks, which included exchanging empty B-Tanks for full ones; delivering a full B-Tank to a jobsite; and delivering paychecks to employees at different jobsites. When the petitioner arrived at the Bordentown jobsite, he met with David Catavan, who was the jobsite's foreman. Mr. Catavan asked if the petitioner was delivering a full B-Tank. The petitioner informed Mr. Catavan that he had not been instructed to deliver a B-Tank to the Bordentown jobsite, and Mr. Catavan responded that he would communicate with Mr. Butler about receiving a B-Tank. At trial, Mr. Catavan explained that he was expecting the petitioner to deliver a B-Tank on September 29, 2020, because he had sent a request to Mr. Butler the day before.

At the end of the workday on September 29, 2020, the petitioner returned to the facility to return the work truck. Acting on his own initiative, the petitioner then loaded a full B-Tank into the hatchback of his personal vehicle with the intent of delivering it to the Bordentown jobsite.  The next morning, on September 30, 2020, the petitioner left home in his personal vehicle to drive to work. The B-Tank was still in the petitioner's car. He forgot about the tank and drove by Bordentown without stopping. After passing Bordentown, the petitioner received a text from Mr. Dietrich, the founder’s nephew and project manager, requesting that the petitioner pick him up and take him to work. Mr. Dietrich lived near the main facility, but he was unable to drive due to an injury. After the petitioner told Mr. Dietrich he would pick him up, he heard a "hissing sound" in his vehicle. He stopped on the side of the road and as he opened the hatch of his vehicle, the B-Tank exploded.

Following the explosion, the petitioner was brought to a trauma hospital where he underwent multiple surgeries and extensive medical treatment. The petitioner was in a coma for eight days, he suffered traumatic brain injuries, and he lost the use of one of his eyes.

At trial, it was undisputed that no one asked or directed the petitioner to deliver the B-Tank to the Bordentown jobsite in his personal vehicle. Testimony and evidence also established that the petitioner had been told not to use his personal vehicle for company business, and the Union Agreement prohibited the use of personal vehicles for company business. The petitioner also had received training on handling B-Tanks and had been told that B-Tanks should not be stored in confined spaces.

However, the compensation judge concluded that the petitioner had been engaged in work-related duties when the accident occurred, and he was entitled to benefits. In addition, the compensation judge found that the petitioner was entitled to benefits under the special-mission exception to the going-and-coming rule. The compensation judge recognized two grounds for finding a special mission. First, the compensation judge determined that the petitioner had embarked upon a special mission of delivering the B-Tank to Bordentown and that mission had not ended before the accident. Second, the compensation judge found that the petitioner was engaged in a special mission for respondent when he was driving to pick up Mr. Dietrich.

On appeal, respondent argued that the petitioner's injuries did not arise out of and in the course of his employment and that the petitioner was not injured while engaged in a special mission for respondent. The court held that substantial credible evidence supported the compensation judge's finding that the petitioner was on a special mission for the respondent when he was in route to pick up Mr. Dietrich. Accordingly, the court found no reversible error in the determination that the petitioner was entitled to benefits. The court did not need to address whether the petitioner was on a special mission to deliver the B-Tank.

An employee's injury arises out of his or her employment if it is more probable that the injury would not have occurred under the normal circumstances of everyday life outside of the employment. Generally, an injury resulting from risks that are distinctly associated with the employment or from uncontrollable circumstances that happen to befall the employee during the course of employment are compensable.

Injuries stemming from an employee's personal activities, however, are not compensable. An employee's injury occurs in the course of employment when it occurs (a) within the period of the employment and (b) at a place where the employee may reasonably be, and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental thereto. Generally, an employee's injury does not occur in the course of employment if it occurs away from the employer's premises or in an area not controlled by the employer.

This rule, known as the premises rule, replaced the longstanding going and coming rule, which prevented employees from recovering for injuries sustained during travel to or from an employee's regular place of work.

There are exceptions to the going-and-coming rule. One exception is the special-mission exception. The special mission exception to the going-and-coming rule allows compensation for employees that are required to be away from the conventional place of employment and are actually engaged in the direct performance of employment duties.

Employees who work away from the employer's premises may be compensated for injuries occurring in the direct performance of their duties. Employees may also be entitled to compensation if their employer compels them to participate in an activity, and they are injured during that participation.

The compensation judge found that the petitioner was on a special mission to pick up Mr. Dietrich when the accident occurred. Specifically, the judge found that Mr. Dietrich requested a ride to work. Mr. Dietrich was a senior employee with the respondent. The petitioner reasonably believed that the request for a ride was essentially a directive from a senior employee of his employer. The judge also found that the explosion occurred while the petitioner was in route to pick up Mr. Dietrich.

Respondent argued that there was testimony suggesting that the petitioner could have refused to pick up Mr. Dietrich and that the petitioner's subjective beliefs were insufficient to support the compensation judge's finding that the petitioner had an objectively reasonable basis to believe he was compelled to pick up Dietrich.

The principal reason that respondent objects to the compensation award is its contention that the petitioner was not asked to deliver the B-Tank outside of working hours or in his personal vehicle. Respondent argued that the petitioner deviated from his job duties by putting the B-Tank in his personal vehicle in violation of his employer's policies, the Union Agreement, and safety training he had received. Those arguments go to the question of whether the petitioner was on a special mission to deliver the B-Tank. As the court pointed out, the order of compensation was not found on that ground. Nevertheless, the B-Tank's presence in the petitioner's personal vehicle is a relevant consideration in examining the special mission to pick up Dietrich. The explosion would not have happened without the B-Tank being in the petitioner's personal vehicle. The compensation judge found, however, that the petitioner's sole motive in placing the B-Tank in his vehicle was to facilitate a delivery for his employer. The compensation judge also found that the B-Tank was an instrumentality of the employer. That no one directed the petitioner to place the B-Tank in his personal vehicle does not take the accident outside of the special mission to pick up Mr. Dietrich.

At oral argument before the court, and for the first time, respondent contended that the petitioner should be precluded from receiving compensation because he had engaged in reckless and unreasonable behavior by placing the B-Tank in his personal vehicle.

The court rejected these arguments for two reasons. First, the record did not clearly establish that these arguments were raised before the compensation judge, and the court generally declines to consider arguments that are raised for the first time on appeal. Second, the facts found by the compensation judge rebut respondent’s contentions in citing Tomeo v. Thomas Whitesall Construction Co., 176 N.J. 366 (2003). The issue in Tomeo was whether the alleged conduct of the employer was an intentional wrong that brought an accident outside of the workers' compensation bar and allowed an employee to directly sue the employer. The case was not analyzing whether an employee's reckless or unreasonable conduct precluded compensation.

The court affirmed because the finding of a special mission to pick up Mr. Dietrich was supported by substantial credible evidence and is consistent with the governing law. The court found no basis to reverse the award.

Comment: The old adage that bad facts make bad law may occur to some of you but we think the facts reasonably support the award. The petitioner was driving to pick up a superior when the incident occurred. The result would have been the same if he was involved in a motor vehicle accident. Picking up a co employee voluntarily may result in a denial of the claim but it can be implied that the petitioner felt obligated to pick one of his bosses.

The negligence in putting the tank in his trunk was just that, negligence and negligence is never a defense to worker’s compensation. Violation of company orders is an extremely difficult and high burden of proof on the employer and generally involves not taking advantage of safety equipment despite it being provided and multiple verbal and written warnings that it has not been utilized. Here, there was no evidence of prior breaches of the employer’s rules and the petitioner clearly believed he is doing something to comply with and further his employer’s business interests. As frustrating as it may seem due to the consecutive errors and mistakes this employee was trying to do his job. The Judges and court will not punish a worker for that nor deprive them of benefits.

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Ralph Richardson
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T: 215.717.0138
rrichardson@wglaw.com

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