While driving the insured's truck, our insured's employee was injured after he dropped off a load and was returning to his point of origin. The driver was paid on a per load basis, and the insured included travel time as part of the compensation. The insurer said that it fell under the coming and going rule and was not covered, but the insured considers this employee to be on the job until he returns to the plant yard or home. Is this injury compensable?

New Jersey Subscriber

New Jersey statutes, section 34:15-36, were enacted in response to court exceptions to the going and coming rule. The statutes define the boundary of "employment" in regard to when an accident arises in the course of employment. The statutes also define "employment" as beginning when an employee arrives at the employer's place of employment and ending when the employee leaves the premises. However, there is an exception that states that employment also occurs when an employee is engaged in the "direct performance of duties assigned or directed by the employer."

In addition, the statute provides that "the employment of an 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."

Based on the statutory definitions, the injury is compensable if the situation meets the requirement that the employee was paid travel time, that he was using an employer authorized vehicle, that he was under the direction of the employer at the time of the accident, and that he was performing employer-required duties.

A similar situation is discussed by the New Jersey Supreme Court in Zelasko v. Refrigerated Food Express, 608 A.2d 231 (N.J. 1992). In this case, the trucker, who was injured while en route to parking his tractor trailer in an offsite parking area, was not driving an employer-furnished vehicle, was not engaged in direct performance of employer-directed duties, and was not paid for travel time. The court, in discussing compensability, reasoned that those criteria should be met in establishing compensability.

It appears that such criteria were met in the insured's case, and the injury is compensable.

 

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