Typically, workers who are injured during their commute to work aren’t eligible for workers’ compensation benefits.
The New Jersey Supreme Court highlighted an exception to that rule in a unanimous decision Tuesday. The high court held that a pest control technician who was injured in a car crash while driving from home to his company’s office to pick up supplies suffered a compensable injury.
The opinion says “when an employee, with permission from an employer, is engaged in a work-related activity or an activity that requires time and effort to benefit the employer, the employee is conducting ‘business authorized’ by the employer.”
Henry Keim was employed as a salaried pest control technician for Above All Termite & Pest Control in Lanoka Harbor. His employer provided a vehicle for him, which he used to drive to various worksites that were assigned to him each morning via a laptop computer.
Keim was allowed to keep his vehicle at his home at night. When he needed supplies, such as pesticides or rodent traps, he drove to the company’s shop to pick them up. Keim testified that he usually made resupply trips every two or three days.
On one morning, Keim suffered substantial injuries in a crash while driving from his home to the Above All shop to collect the supplies he needed. Keim struck his head on the interior of his work vehicle and lost consciousness. About two months after the accident he learned he had subdural hematomas that required surgery.
Above All’s insurance carrier denied Keim’s workers’ compensation claim. A judge of compensation claims concluded that Keim was injured while commuting to work. The judge dismissed the claim, finding the fact that Keim was going to the shop to pick up supplies was irrelevant.
The Appellate division disagreed and reinstated Keim’s claim. Above All appealed to the Supreme Court, arguing that the Workers’ Compensation Act creates a bright-line “coming and going” rule whereby injuries sustained while commuting to and from work are not compensable.
The high court’s opinion says legislation adopted in 1979 created four rules governing when an employee is considered to be in the course of employment: the “premises rule,” meaning the employee is at his or her workplace; the “special mission rule,” meaning the worker was running an errand for the benefit of the employer; the “paid travel time rule,” meaning the worker was being paid for the time spent traveling to the job site; and the “authorized vehicle rule,” meaning the employee was using a vehicle authorized by his employer for business purposes.
Keim’s trip to the Above All shop to pick up supplies falls within the gambit of the “authorized vehicle rule,” the Supreme Court said. The employer had instructed its employees to stop by the shop to pick up supplies when needed in an effort to minimize travel time and keep a “robust appointment schedule.”
Attorney Richard B. Rubenstein, managing partner with Rubenstein Berliner & Shinrod in Livingston, filed an amicus brief supporting Keim’s petition on behalf of the New Jersey Advisory Council on Safety and Health. Rubenstein is co-chairman of the advocacy group and author of the Lexis-Nexis Practice Guide to New Jersey Workers’ Compensation.
“The case has broad implications for any worker who operates a work vehicle and whose work is centered outside of the home base of the business,” Rubenstein said in an email to the Claims Journal. “In an economy which is transforming before our eyes, with remote workers making up a much greater proportion of the workforce, the Keim case was momentous.”
Rubenstein said while defense counsel and the judge of compensation claim found the 1979 statute opaque, he found the law to be “crystal clear.”
“An accident arises in the course of employment when ‘it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time,'” he said, quoting Bryant v. Fissell, a 1913 decision that was also cited in Tuesday’s decision.
“This case is important because any other result would leave workers who take home their employers’ vehicles for their employers’ profit or convenience without medical or disability coverage if an accident should befall them,” Rubenstein said. “This donut hole can be catastrophic for a worker, and departs from the intention of the Legislature to mandate coverage for drivers of motor vehicles in New Jersey.”
Top photo is courtesy of Above All Termite & Pest Control.
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