NJ Supreme Court weighs exceptions in workers' comp statute for injuries during commute
'What I am suggesting is that we read the statute — and it could have been written better — to be sure,' Chief Justice Stuart Rabner said.
The New Jersey Supreme Court heard oral arguments Monday in an appeal concerning whether an employee, injured while driving to his place of employment, should be compensated under the state’s workers’ compensation act (WCA).
Henry Keim was employed by Above All Termite & Pest Control as a salaried employee with a company vehicle he took home every night, according to the Appellate Division opinion.
Michael Zummo, the owner of Above All, instructed employees not to keep large quantities of pesticides and supplies in their vehicles. Employees were expected to use their work vehicles to travel directly to the remote job sites if they had enough supplies. If they needed supplies, the employees would go to Above All’s shop to restock.
In July 2020, Keim was seriously injured in an early morning motor vehicle accident on his way to the shop to get supplies. He filed a workers’ compensation employee claim petition. Above All moved to dismiss the claim petition and contended that Keim’s injuries “did not arise out of and in the course of employment,” according to the opinion.
A workers’ compensation judge sided with Above All, and dismissed the petition with prejudice and held that Keim’s injuries were not compensable under the workers’ compensation act because “he was not acting within the course and scope of his employment at the time of the accident.” The Appellate Division disagreed and held that Keim’s injuries were compensable under the authorized operation of a vehicle exception.
Keim was represented by April M. Gilmore of The Epstein Law Firm before the New Jersey Supreme Court. Anne Hammill-Pasqua of Capehart & Scatchard appeared for Above All. Richard B. Rubenstein, managing partner of Rubenstein, Berliner & Shinrod, appeared for amicus curiae Council on Safety and Health of NJ.
Hammill-Pasqua argued that the exceptions contained in the WCA do not apply to Keim because he was traveling to his place of employment. Chief Justice Stuart Rabner cited the exceptions, listed in Section 36 of the WCA:
“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; provided, however, when the employee is required by the employer to be away from the employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.”
“What I am suggesting is that we read the statute — and it could have been written better — to be sure,” Rabner said.
Justice Douglas M. Fasciale cited the Appellate Division’s conclusion that “Keim was engaged in services within the course and scope of his employment at the time of the accident and he was performing duties that were expressly authorized and directed by his employer.”
“That is why they said it fell within the authorized operation of a business vehicle exception of the premises rule,” Fasciale said.
Justice Michael Noriega, in his first appearance on the bench, questioned Hammill-Pasqua on what she makes of the fact that Keim logged in and clocked in on his iPad at home. Hammill-Pasqua disagreed that Keim’s workday began at that point. And, the attorney added, there would be countless scenarios that this will open up exceptions if the legislative intent is not applied.
Justice Anne M. Patterson’s line of questioning attempted to define the scope of the exceptions by presenting the attorneys with scenarios and asking if, for example, an attorney who stops at the office on their way to court would be covered during that drive to the office. Hammill-Pasqua argued that the “routine travel” of an employee going to their place of employment is not an exception contemplated by the statute.
Gilmore argued that the WCA is to be liberally construed in favor of compensability and that the court need only apply the plain language of the statute in order to provide her client with benefits.
“Henry was an off-premises employee, operating a company vehicle on business, not only authorized, but directed by his employer, falling directly within the statute,” Gilmore said.
Rubenstein told the court about one of his clients who was killed by a drunken driver while working for an HVAC company. An insurance company denied his family’s claim after his death by stating that it had to deny the case based on Section 36 of the WCA. When questioned by the justices on whether there are any reported cases such as the one he described, Rubenstein said that since no one ever challenged this proposition, there are no reported cases.
“A judge of compensation, using a commonsense reading of Section 36 of the act, determined during the first conference that the actual standard employed in the act applied the workers’ compensation benefits to the dependents,” Rubenstein said. “That, indeed, his operation of an authorized vehicle, even though he was going from home to the plant, was a covered accident.”
Rubenstein said that he vehemently disagrees with Hammill-Pasqua’s definition of a place of employment, which, he said, was at the core of the inquiry here. And, Rubenstein noted, that Keim was driving a commercial vehicle, not by his own choice, that had no personal injury protection benefits.
“If he does not have workers’ compensation, he is not covered by PIP, he becomes a public charge,” Rubenstein argued. “His bills are not paid because of the doughnut hole that my adversary is asking be created in this case.”
Related: