January 1, 1900

by Stephen R. Banks

Although an employee's liberty is imputed when they leave their home to head to work, recovery for an injury to and from their "place of employment" is subject to limitation. Historically, 1911 legislation contained no definition of employment. It provided compensation only "when employees were injured or killed in accidents arising out of and in the course of employment" N.J.S.A. 34:15-7. This language was specifically defined only for accidents that occurred "while the employee is doing what they are employed to do during the time of employment and the place he is to be at that time." Bryant Ad mx v. Fissell. The theory behind the definition was that injuries sustained during routine "going and coming" travel to work were not compensable because they yielded no special benefit to the employer. However, equitable arguments and social exceptions resulted in two forms of judicially created exceptions: premises injuries and off-site injuries. The cases reviewing various factual scenarios carved out numerous exceptions, almost overshadowing the purpose of the law.

To limit these exceptions, N.J.S.A. 34:15-36 was enacted in 1979. It provided a more specific definition of employment: that it should commence when an employee arrives at the employer's place of employment, excluding areas not under the control of the employer, provided when 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.

On Premises Injury

This legislation was interpreted in Livingstone v. Abraham & Strauss to limit the extent of compensation for all off-premises accidents, but not to change established views of on-premises injury. The Court in Livingstone reviewed a factual pattern wherein an employee at a shopping mall, who was hit by a car walking from a designated area of the parking lot to the store. The Court found the employer liable based on the fact that the employer forced employees to park in this part of the lot. By requiring this, it became an employer-owned lot and satisfied the element of control. From this case, a framework of analysis was enacted wherein the Division of Workers' Compensation has primary jurisdiction to decide if a case is compensable under N.J.S.A. 34:15-7. The Court must then determine if the injury "occurred during employment" under the premises test. The pivotal issues for interpretation under these rules are: (1) where was the site of the accident (and) (2) did the employer have control of the property or area where the accident occurred? Control as defined in the Compensation Act differs from control in the formal property sense since it is more expansive and includes more than the four walls of an office plant. Control exists when the employer owns, maintains, or has exclusive use of the property.

Pursuant to N.J.S.A. 34:15-1, an employee's injuries must also arise "out of" the employment, and the risk must be what an employee has to do with fulfilling their contract of service. When defining the connection between the injury and employment, New Jersey uses the "but for" or positional risk test. See Coleman v. Cycle Transformer Corp. In applying the "but for" test, there are three identified categories of risk, which may result in an accident arising "out of employment." These are risks (1) distinctively associated with the employment, such as an employee getting fingers caught in a machine, (2) neutral risks, such as an employee struck by lightening, and (3) personal risks, which arise from personal proclivities of an employee and have a minimal connection to employment. Distinctly associated or neutral risks are compensable while accidents resulting from personal risks are non-compensable.

Application of this framework resulted in recovery in Brower v. ITC Group. The Court found that an injury was compensable which occurred after an employee punched out at the end of a working day and fell descending a stairwell in a multi-tenant office building. In Ehrilich v. Strawbridge and Clothier, liability attached when an employee was injured in a fall on a metal staircase that was part of the store premises because the employer exercised control over it, and employees were required to exit the store by it. The Court did not permit recovery in Zahner v. Pathmark, where a Petitioner was injured in a slip and fall at a supermarket while shopping after work because it did not arise from employment.

Off Premises Injury

Regarding off-premises injuries, the Workers' Compensation Statute does not allow compensation for accidents occurring outside of an employer's control except in a "special mission" and "travel time" exception. The special mission exception allows compensation at any time for employees when (a) required to be away from conventional places of employment and (b) if engaged in the performance of job duties. The travel time exception allows portal to portal coverage for employees during (1) paid for travel time to and from a distant job site or (2) using an employer authorized vehicle for travel time to and from a distant job site. Zelasko v. Refrigerated Food Ex. Zelasko dealt with an employee, who was injured after parking his truck at an off-site location not furnished by the employer. The Court strictly interpreted these tests and concluded that because the driver was off-premises his workday had ended, and he was no longer engaged in the direct performance of his duties assigned by this boss. The Court also denied recovery under the travel exception stating that the Petitioner was not in an "authorized vehicle" because he was not going to or coming from a distant job site. Older cases such as Correria v. Maplewood Equip. Co. found recovery where a worker was injured in an otherwise unexplained deviation. However, new cases have stressed the "direct performance" language of the 1979 amendments to the statute and denied recovery in such recent cases as Jumpp v. City of Ventor, where an employee was injured picking up his personal mail at the post office after deviating from his assigned route.

The Court's findings and Workers' Compensation Act show a willingness to find compensability for on-site injuries. However, off-site injuries are still held to a strict standard, which means that a detailed itinerary up to the time of injury must be obtained and carefully reviewed in all relevant circumstances.

Stephen R. Banks is an associate of Hill Wallack and a member of the Litigation Division and Workers' Compensation Practice Group. Mr. Banks concentrates his practice in handling defense litigation, personal injury and workers' compensation.