State News : New Jersey

In a rather unique unreported case, the Appellate Division recently held that a drive to the normal work site can be considered compensable on the facts in Minter v. Mattson,A-1916-15T4 (App. Div. May 10, 2018).  The case involved a kitchen worker, Antoine Minter, who called out of work due to a heavy snow storm that started the night before.  Minter advised his supervisor, Dan Beggs, the executive chef, that he had to miss his morning shift since the morning bus to work was not running on account of the snow storm.

The food service in the dining hall was essential, so the dining director, John Lear, came up with an alternative plan to get Minter to work.  Lear contacted Beggs, who advised the dining supervisor, William Mattson, to pick up Minter on the way to work since both Minter and Mattson lived in the same town.  According to Minter’s testimony, Mattson told him that Beggs made clear that Minter had to come in during the snowstorm.   Minter testified that he thought he would be fired if he refused.  The two men had ridden together to work before.  Mattson picked up Minter while the storm was still heavy and roads were ice-packed.  Mattson lost control of the car he was driving, entering the path of an oncoming pick-up truck.  In the collision, Minter suffered two broken legs, fractured ribs, and a deep laceration to his left arm.

The case was heard in Superior Court because Minter tried to bring a civil suit against Mattson and his employers.  The outcome of the civil suit depended largely on whether the two men were in the course of their employment. The employers argued that Minter’s only remedy was workers’ compensation and moved to dismiss the civil law suit.  Later the workers’ compensation carrier for the employer, Manufacturers Alliance Insurance Company, was joined in the suit, and the compensation carrier argued that Minter was not in the course of his employment because he was just on his way to work.  The compensation carrier argued that travel to and from work is excluded under N.J.S.A. 34:15-36.  The special mission exception only applies to trips away from the employer’s place of business.

Minter argued that he was compelled to perform an activity that he would not have otherwise engaged in, since he had called out that morning.  He relied on the case of Lozano v. Frank Deluca Constr., 178 N.J. 513 (2004), which held that an otherwise excluded activity may be deemed compensable if the employer compels the activity and if the employee has a reasonable basis to believe that participation in the activity is compelled.

The compensation carrier argued that the principle of compulsion could not be applied to drives to and from work because attendance at work is compelled for all employees.  All employees are subject to termination if they fail to report to work. But the Appellate Division disagreed:  “In one sense, travel to and from work is always compelled.  Employers set work schedules and employees are generally expected to comply.  Those who do not comply usually risk losing their jobs.  But, the compulsion in Minter’s case was specific and exceptional.  Minter had already called out for the day. Thus, if he could establish that his employer compelled his non-work-related activity – the journey to work in a co-worker’s vehicle on a day he had already announced he would not work – the accident would be covered.”

The Appellate Division also noted that Minter could have argued that he was involved in a ride-sharing arrangement under N.J.S.A. 34:15-36.  That would have rendered his commute compensable.  However, his attorney never made that argument.  The Court emphasized that Minter’s belief that he might have been fired had he refused to come to work was objectively reasonable.  “In sum, Minter was injured in the course of his employment, despite the fact that he was not yet at his employer’s premises, because his employer had compelled his travel to work with a co-worker on a day he had already informed his employer he was not going to come in.”

This is the first Appellate Division level decision since the 1979 Amendments to the workers’ compensation law which has embraced the concept of compensability of a drive to a normal work site based on compulsion.  There is no reported case standing for this proposition.  The normal rule is that one is not at work until one arrives at premises owned or controlled by the employer.   Even though it is an unreported decision, this case is important because it charts new territory on compensability. The factual situation addressed in this case is one that does occur for employers with some frequency given severe weather conditions in the winter months.  It remains to be seen whether this logic is eventually embraced in a reported decision.

Our thanks to Ron Siegel, Esq. for bringing this case to our attention.

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

John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.