Nostalgia For A Great Hot Dog Results In A Finding Of No Compensability
A Workers Compensation judge’s dismissal of a claim by a salesman injured in a motor vehicle accident was affirmed by the Appellate Division in a ruling that held a side trip to a favorite restaurant was a deviation from the course of employment. Andrew Mackoff v New Brunswick Saw Service, A-3625-19, decided July 14, 2021, presented a rather simple fact situation. The petitioner, a resident of Blackwood, NJ, was a salesman for respondent. On the day of the accident he left his home in Blackwood and traveled north to West Caldwell, NJ, for a 10am meeting with a client. Testimony revealed that after the meeting he intended to drive south to his office in Middlesex, since he testified “…he had not been to his office ‘in a while.’” However, he was hungry after the client meeting and, remembering the hot dogs at the Galloping Hill Inn (the Inn) in Kenilworth, decided to go there before heading to his office. The Inn was about an hour away from his office. On his way to the Inn he was involved in a motor vehicle accident.
The petitioner filed a formal Claim Petition and a Motion for Medical and Temporary Benefits, which proceeded to trial. Petitioner testified that after the meeting he was hungry and decided to go to the Inn since it “…was like a nostalgia place…” and he “…had been going there forever.” He also testified that, theoretically, the Inn was a prospect since they used slicers and sell food. He added that he had other customers in the area of the Inn. However, on cross-examination petitioner admitted the Inn was never a customer, and that he had not made any appointments to visit other customers on that day.
After testimony the compensation Judge found that at the time of the accident the petitioner did not intend to “prospect” the Inn, but rather to eat lunch. She found that his primary purpose was personal, not work-related, and therefore the accident did not occur in the course of his employment, and therefore dismissed his claim with prejudice for failure to sustain the burden of proof as to compensability.
On appeal the Court, considering petitioner’s testimony, found no reason to disturb the findings of the compensation Judge. The Court cited the New Jersey Supreme Court case of Jumpp v. City of Ventnor, 177 N.J. 470 (2003): “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 the injury.”
Additionally, although not raised by petitioner below, the Court addressed petitioner’s allegation that his trip to the Inn was a “minor deviation.” Noting the facts showing the side trip was “…not minor in nature,” the Court again cited Jumpp, noting that the Supreme Court there acknowledged that N.J.S.A. 34:15-36 expressed “a clear legislative mandate sharply curtailing compensability for off-premises accidents.” The Court quoted Jumpp at p.484: :{i}n cases involving an alleged minor deviation, the question is not whether the off-premises employee was satisfying a personal need, the completion of which is neither incidental to his…employment…nor beneficial to the employer, but rather, whether the employee has embarked on a personal errand that would have been compensable if carried out by an on-premises employee.”
This decision presents an excellent analysis of the issue of deviations from employment on the part of travelling employees. Every employer should be aware of this issue, develop guidelines for their traveling employees, and, when an accident occurs during the course of employee travel, initiate a prompt investigation of the facts, using cases such as this as a guideline for determining the nature of the trip in question. The Workers Compensation attorneys at Brown and Connery are always ready to assist employers and insurance professionals with questions and concerns regarding this topic and any other workers compensation topic which might arise.
If you have any additional questions, comments or concerns about this topic or any other issues related to your worker’s compensation needs, please feel free to contact the worker’s compensation group here at Brown & Connery, LLP via email or call 856-854-8900.
By: Alfred P. Vitarelli, Associate at Brown & Connery, LLP