Delson and Tighe, Contradictory Decisions

Saturday, March 10, 2007 | 0

by Ian G. Zolty, Esq.

The Appellate Division in the matters of Delson v. Growing Years and Tighe, Jr. v. Jack Trebour Motorcycles, LLC, reviewed similar fact patterns but reached inapposite decisions of compensability in applying the special mission exception to the going and coming rule. Of note, Delson was decided on October 11, 2005 and Tighe was decided on October 18, 2005, but neither opinion was published. In the matter of Delson v. Growing Years, et al., petitioners Nuri and Walter Delson were injured in a motor vehicle accident during a trip to purchase parts necessary to complete their employment tasks.

During the trip, the petitioners deviated to view the Fall foliage The Superior Court of New Jersey, Appellate Division, concluded in an unpublished opinion that when the accident occurred, petitioners were engaged in job duties, thus finding the accident compensable. Petitioners were employed by the respondent, Wayne Presbyterian Growing Years Child Development Center of New Jersey ("Growing Years"). Growing Years is a nursery school which uses several rooms at a local church on Monday through Friday. As the church requires the use of the rooms on the weekend, Growing Years was required to remove its equipment from the rooms on Friday evenings and return the equipment on Sunday evenings.

Prior to the accident, petitioners arrived at the church around 3:00 p.m. on Nuri's motorcycle to set up the nursery equipment for school on Monday. Upon arriving, petitioners noticed that the wheels of some of the cribs had broken off and needed repairing. That was not unusual as petitioners had to purchase new equipment for the cribs to complete the Sunday set-up numerous times in the past. When necessary, they purchased equipment at a local Channel store.

At 3:30 p.m., petitioners left the church on their motorcycle. The Appellate Division exercised its original jurisdiction and decided that the primary purpose for the trip was to go to the Channel store to purchase necessary crib parts, return to the church and complete the set-up for the next day. After leaving the church, petitioners proceeded north on Route 23 for 8 1/2 miles and stopped at a Burger King. After approximately thirty minutes, petitioners rode north on Route 23 for a short time to look at the Fall foliage. After making a u-turn, petitioners were heading south on Route 23 towards the Channel store when a vehicle forced petitioners' motorcycle off the road. It should be noted that there was a Channel store within 2 miles of the church and the accident site was 11 1/2 miles from the church. The judge of compensation found that: After reviewing all the evidence that&Jumpp v. City of Ventnor, 177 N.J. 470 (2003)*fn 1*, controls here and compels a finding on the facts&that petitioner's lunch at Burger King and subsequent decision to take Route 23 north to see fall foliage rather than south off the adjacent Kiel Avenue exit is a non-compensable deviation&Here petitioner's deviation was no different from the office worker who takes an afternoon break and takes his motorcycle for a ride to see fall foliage. Neither deviation would be compensable.

The Appellate Division, in reversing the judge of compensation, found that at the time of the accident, petitioners were back on their mission to the Channel store for their employer to get the necessary parts. As such, petitioners were performing their job duties at the time of the accident and such was deemed compensable. Under a similar fact pattern to Delson in Tighe, Jr. v. Jack Trebour Motorcycles, LLC, the Appellate Court came to the exact opposite finding in regards to compensation. In Tighe, petitioner was injured in a motor vehicle accident on his way to his employer's Kenvil office for the start of a promotional motorcycle ride, after meeting a co-worker and fellow rider at a local mall.

The Appellate Division concluded that at the time of accident, petitioner was not engaged in a work-related task because he was not participating in the promotional ride or traveling directly from his house to the Kenvil location. Instead, petitioner was engaged in a detour to meet a co-worker at a shopping mall and the accident was deemed non-compensable. At all relevant times, petitioner was employed by respondent. Petitioner's regular work site was a repair shop on Route 10 in Randolph. When the accident occurred, petitioner was on his way to the Kenvil office for the start of a Ducati promotional motorcycle ride conducted by the respondent. Respondent's general manager encouraged petitioner to participate in the ride and lent petitioner a motorcycle to use for said purpose.

On the Sunday morning of the ride, petitioner drove past the exit on Route 80 that would have taken him directly to the Kenvil office in order to meet a co-worker, who also intended to participate in the ride, at a local mall. As the two were driving from the mall to the Kenvil office, petitioner was involved in the accident at issue. Following an evidentiary hearing, the judge of compensation concluded that petitioner's accident occurred in the course of his employment and, therefore, was compensable under the "special mission" exception to the "going and coming" rule.*fn 2*

The Appellate Division found that petitioner would have been engaging in a special mission and entitled to workers' compensation benefits if petitioner was injured during the ride because he was ordered to participate in same by the respondent. Moreover, because respondent's Kenvil facility was not petitioner's usual place of employment and petitioner did not ordinarily work on Sundays, any injury petitioner may have suffered while traveling directly from his home to the Kenvil location also would have been compensable. However, the Appellate Division considered petitioner's trip to the mall to meet his co-worker before the motorcycle ride a personal activity, and, thus, concluded that petitioner was not "engaged in the direct performance of duties assigned or directed by the employer" at the time of the accident. Respondent did not direct or authorize petitioner's trip to the mall to meet his coworker.

Further, petitioner's trip to the mall was not merely a minor deviation from the performance of his assigned duties, but a substantial deviation from a direct route to the Kenvil location. Accordingly, the judgment of the Division of Workers' Compensation granting petitioner workers' compensation benefits was reversed. As you can see, the Appellate Division reached opposite decisions in two cases with virtually identical facts. The one factor that appears determinative, however, seems to be the employer's direction or authorization of petitioners' actions. In Delson, the employer's knowledge of prior trips to the Channel store serves as authorization for such trips. Indirectly, the employer authorized whatever route petitioners chose to take. In Tighe, on the other hand, "respondent did not direct or authorize petitioner's trip to the mall to meet his co-worker." As such, the petitioner was not engaged in the direct performance of duties assigned or directed by the employer, and the accident was deemed non-compensable.

*fn 1* In Jumpp, petitioner's job required him to travel, by way of city-owned vehicle, to different worksites. During his travels each day, he stopped at a local post office to retrieve his personal mail. One day, after retrieving his mail, he fell before he had returned to his vehicle and resumed his route. The judge of compensation denied petitioner's claim, finding that, although the stop was a minor deviation from the petitioner's responsibilities, "he was engaged in a personal errand and not the 'direct performance of duties assigned or required by [his] employer.'" Id. at 475. The Supreme Court agreed holding that "when an employee is assigned to work at locations away from 'the employer's place of employment,' eligibility for workers' compensation benefits generally should be based on a finding that the employee is performing his or her prescribed job duties at the time of injury." Id. at 482.

*fn 2* The Workers' Compensation Act requires employers to compensate employees for accidental injuries "arising out of and in the course of employment." N.J.S.A. 34:15-7. The 1979 amendments to the Act added a definition of "employment," which states that "when an employee is required by the employer to be away from the employer's place of employment, the employee shall be deemed in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer. N.J.S.A. 34:15-36.

Ian G. Zolty is an attorney with Capehart Scatchard. This column was first published in Capehart Scatchard's January newsletter. The law firm's Web site is http://www.capehart.com/

-------------------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.