Geaney: Explosion in Personal Vehicle Held Compensable

Thursday, December 15, 2022 | 0

One of the most interesting workers’ compensation cases in a long time is Van Sciver v. Jersey Mechanical Contractors Inc. There are layers of legal issues in this case, which involved a very serious accident injuring Mr. Van Sciver when a tank filled with acetylene gas exploded.

John H. Geaney

Van Sciver worked for a family-owned business with its main office in Farmingdale, New Jersey, a small borough in Monmouth County near Howell Township. The business provides mechanical contracting services at various job site locations. Petitioner started working with the company in October 2019 and belonged to a union. At the time of the injury, he was a second-year apprentice pipe fitter and truck driver working from 7 a.m. to 3:30 p.m. A large part of his job was to make deliveries to the company’s job sites of tanks of acetylene gas (B-tanks). These were used to solder pipes.

Petitioner’s supervisor, Mr. Butler, advised him on Sept. 29, 2020, to exchange two empty B-tanks for full ones at a store that serviced B-tanks. He also had to deliver one full B-tank to a job site in Livingston and deliver paychecks to Jersey Mechanical employees at five job sites. One of those job sites was in Bordentown. After arriving in Bordentown, petitioner met the job site foreman, Mr. Catavan, who asked if petitioner was delivering a full B-tank. Petitioner advised Catavan that he had not been so instructed. Catavan said he would communicate with petitioner’s supervisor because Catavan had been expecting a B-tank that day, having made a request to the supervisor, Butler, the day before.

Petitioner finished his day by returning the company truck to Farmingdale. Without being instructed to do so, petitioner proceeded to load a full B-tank into the hatchback of his personal vehicle. His plan was to drop it off for Catavan the next day in Bordentown.

Petitioner drove home to Mt. Laurel, where he lived. He passed Bordentown but did not stop because it was too late in the day. The next day, petitioner got up and drove to work, passing Bordentown again and forgetting to stop there. After passing Bordentown on the highway, petitioner received a text message from the company owner’s nephew, Mr. Dietrich, asking him if he could pick Dietrich up and take him to work. Dietrich lived near Farmingdale but could not drive due to a foot injury. Petitioner agreed to pick up Dietrich.

Shortly after receiving the text message, petitioner heard a hissing noise in his vehicle.  He then remembered he had the B-tank in the hatchback of his car. He stopped on the side of the road, opened all the windows, exited his car and began to open the hatch when the B-tank exploded. Petitioner suffered serious injuries and was in a coma for eight days. He underwent multiple surgeries and lost the use of his eye. Petitioner eventually filed a claim petition and motion for medical and temporary disability benefits.  Jersey Mechanical denied the claim and argued that the injury did not arise from employment in part because petitioner was on his way to work when the accident happened.

At trial, evidence was offered that petitioner had been told not to use his personal vehicle for company business. The union agreement prohibited the use of personal vehicles for company business. Petitioner had received training on handling B-tanks and had been advised that they should not be stored in confined spaces. 

The judge of compensation ruled that the B-tank “was a workplace instrumentality of” Jersey Mechanical. The judge also ruled that petitioner had been asked to pick up Dietrich while he was on his way to work. The judge further found that petitioner had an objectively reasonable basis in fact for believing that he really needed to pick up Dietrich, given that Dietrich occupied a high-level position in the company. The case was found compensable on the theory that petitioner was injured while performing a special mission based on the theory of compulsion.

Jersey Mechanical appealed and argued that there was no special mission in this case and that petitioner was never asked nor directed to deliver the B-tank outside working hours or in his personal vehicle. Jersey Mechanical also argued that petitioner deviated from his job duties by loading the B-tank in his personal vehicle. The employer also attempted to argue on appeal (but not at the compensation court trial) that petitioner willfully failed to make use of proper personal protective devices causing his injury. Neither the judge of compensation nor the Appellate Division was impressed with this argument. It is not clear what proof respondent offered as to the willful failure to make use of proper personal protective devices.

The Appellate Division agreed with the judge of compensation that petitioner had a reasonable basis to believe he needed to pick up Dietrich, given Dietrich’s high position in the company. That brought the case within various “compulsion” decisions that have held that when an employee is compelled to perform a certain activity, that activity becomes compensable. The court also considered the fact that the accident happened only because of the presence of the B-tank in petitioner’s vehicle.

Nevertheless, the B-tank’s presence in 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 petitioner’s personal vehicle. The compensation judge found, however, that 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. Consequently, that no one directed petitioner to place the B-tank in his personal vehicle does not take the accident outside of the special mission to pick up Dietrich.

The case raises several provocative issues:

• Was the court correct that it even mattered that petitioner was on a “special mission” to pick up Dietrich, given that the accident happened only because of a hazard inside petitioner’s car?
• Would this case have been found compensable even if petitioner had been driving to work, given the highly dangerous B-tank in a confined space?
• Was petitioner’s conduct a major deviation along the lines of Money v. Coin Depot Corp.?

The answer to question number one is important because virtually all the special mission cases involve hazards outside the petitioner’s own vehicle while performing the special mission: another car striking the vehicle or dangerous icy road conditions. There are no special mission cases involving a hazard inside the petitioner’s own vehicle.

In this case, there is a strong argument that it made no difference legally whether petitioner was driving toward Farmingdale for work or to pick up Dietrich, because the explosion (the gas leak started within petitioner’s vehicle) was going to happen when it happened, regardless of where petitioner was going. The special mission in picking up Dietrich did not add any risk at all. He was still headed in the same direction on the same road. The explosion occurred before petitioner picked up Dietrich.

In essence, the court found this case compensable because of the text message request to pick up Dietrich, which caused no immediate change in the travel route and had nothing to do with the highly dangerous risk of a gas leak within the petitioner’s car.

The second question would have been an interesting one for the court to have addressed. Could the Appellate Division have ruled that the B-tank was an instrumentality of the employer and, therefore, the extreme hazard posed by the presence of the B-tank in the car — and subsequent explosion — arose from work, even if petitioner was driving to work?

It is truly rare for an injury on the way to work to be found compensable. But there is one unreported Appellate Division case where a drive to work was found compensable due to extreme hazards.   

In Minter v. Mattson, Mr. Minter called out of work due to a heavy snowstorm. The director of the food service company contacted another employee and told him to pick up Minter on the way to work even though Minter had called out of work. Minter decided to get in his colleague’s car and go to work because he thought he would be fired if he did not. On the ride in, the roads were treacherous with icy conditions.The co-employee lost control of his vehicle and Minter was severely injured in a head-on car accident.  The Appellate Division found that the ride to work was work related as to Minter because he felt compelled to go even though he had called out.

If an employee who worked in a pet store that sells snakes were asked to drive some snakes to or from work, and one of the snakes got loose and bit the driver employee, causing severe injury, would that injury be compensable based on the unusual nature of the hazard? There are no published cases in New Jersey addressing this kind of fact pattern.  

The third question is also most interesting. Did Van Sciver’s action in loading a B-tank in his private vehicle against company rules and without direction from anyone at the company constitute a major deviation? In the Money case, the court held that petitioner’s actions in playing Russian roulette in his armored car vehicle constituted a major deviation from employment when Mr. Money shot and killed himself. The widow’s dependency case was therefore dismissed. In this case, the court did not feel petitioner’s actions constituted such a major deviation from employment. 

There are also cases where a personal risk disqualified the employee from compensation, such as Coleman v. Cycle Transformer. There, the petitioner got a permanent wave solution the night before work and then lit a match at work the next day, causing her hair to ignite with resulting burns. The Supreme Court denied the case because petitioner created the risk of igniting her hair outside work with the permanent wave solution.

In this case, the petitioner testified that he loaded the B-tank in his vehicle only because the Bordentown site supervisor wanted it, although petitioner forgot about dropping it off the next morning. That seems to take it outside the rule in Money, where petitioner knew fully well that he was putting his life on the line by playing Russian roulette.

This case is unreported, meaning courts need not follow its rule, but the facts raise many interesting questions for practitioners to consider.

John H. Geaney is an attorney, executive committee member and shareholder with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.