Key Defenses

A key doctrine in the law known as “respondeat superior” provides that an employer is responsible for the acts of its employees performed within the course of their employment.  Whether that doctrine applied to an employee who had a motor vehicle accident after being summoned to a training meeting was the issue in Samol v. Vanlaningham, No. A-5058-18T2 (App. Div. June 3, 2020). 

The facts involved a high school student, Ryan Vanlaningham, who was called by his store manager to attend a training meeting at Party City where he worked in March 2016.  Vanlaningham was informed that he would be compensated at his usual hourly rate for the training meeting, and he would work his regular shift the same day.  He was not compensated for the time driving to the training meeting at his work location.  While driving to the training meeting, Vanlaningham’s vehicle struck a vehicle owned by Pablo Samol.  A passenger in Samol’s car, Beatrice Samol, was injured and filed a lawsuit naming Vanlaningham and his employer, Party City, as defendants.

Party City opposed the law suit and moved to dismiss it.  The company argued that Vanlaningham was not in the course of his employment when he was driving to work for the training meeting under the going-and-coming rule.   Samol countered that this was not a normal commute to work because Vanlaningham was either compelled to go to work or was on a special mission, two exceptions to the premises rule, which replaced the going-and-coming rule in New Jersey in 1979.

The trial judge ruled that Vanlaningham had not arrived at work when the accident occurred, and therefore Party City was not liable for his actions.  The judge concluded that the training meeting was a normal and routine part of the young man’s employment.  The Appellate Division agreed with the trial judge but considered the argument of Ms. Samol that Vanlaningham was “compelled” to undertake the actions of driving to the training meeting.  The Court reviewed the two leading cases on compulsion in workers’ compensation, namely Sager v. O. A. Peterson Constr. Co. and Lozano v. Frank De Luca Constr.  Those cases stand for the proposition that an otherwise non-compensable activity can become compensable if the employer compels an employee to perform the activity.

The Court seemed to blend the special mission and compulsion arguments together: “Here, there was no credible basis to support the assertion defendant controlled Vanlaningham’s commute or that his commute fell within the scope of his job duties.  The facts did not demonstrate Vanlaningham’s commute was pursuant to a special mission; he was traveling to his regular place of employment on one of his pre-scheduled workdays.  For these reasons as well, his drive to work on the day of the incident was not a compelled activity.”

The decision of the court is clearly correct and the reasoning is a sound. But the court slightly missed the mark on the special mission argument.  The statute states that a special mission only applies when the employee is required to be away from the employer’s place of employment.  N.J.S.A. 34:15-36.  Here the drive was directly to the normal place of employment.   Therefore, it could not be considered a “special mission.”

As for the compulsion argument, all employees are compelled to go to work.  Attendance at work is not optional, as we all know.  The compulsion line of cases is a valid one in New Jersey.  However, it only applies to activities that are not normally required of employees. Since all employees are compelled to report to work, the compulsion argument really made no sense.  If the court were to entertain the argument that a drive to the normal work site was compelled, it would completely undercut the goal of the 1979 Amendments, which was to do away with the many exceptions in the law to the going-and-coming rule. 

Thanks to attorney Ron Siegel for bringing this case to our attention.

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The case of Martin v. Newark Public Schools was the subject of an earlier blog on October 7, 2019.  At the time of that blog, the case had not been approved for publication.  On December 13, 2019, the Committee on Publications decided to approve Martin for publication.  It is now the only published decision in New Jersey workers’ compensation on this specific issue and therefore the leading case on requests for continued opioid use. 

The case involved a not uncommon situation where two
physicians disagreed on the need for long-term opioid use. The treating
physician, Dr. Patricio Grob, treated petitioner from 2011 to 2017 but then released
petitioner in September 2017, writing one final prescription of Percocet as a
courtesy to Mr. Martin. Dr. Grob felt that Percocet was poorly controlling
Martin’s pain.  He also said that
continued Percocet would “not manage petitioner’s radicular complaints . . .
and could complicate his recovery.” 
After six years of treating petitioner with Percocet, Dr. Grob concluded
that prescription pain medication would never improve Martin’s condition. Dr.
Grob recommended surgery but petitioner declined surgery due to an unrelated
blood condition.

Martin next saw Dr. Harris Bram, an expert in pain
medication, for a one-time evaluation.  Dr.
Bram noted that petitioner had disc desiccation at L4-5 and L5-S1 and a disc
herniation at L5-S1.  Dr. Bram recorded somewhat
contradictory statements from petitioner. 
In taking petitioner’s history, Dr. Bram said Martin reported opioid
medication provided only “small pain relief.” 
But he also self-reported in other records that Percocet abated his pain
symptoms by approximately 60%.  Dr. Bram
concluded that long-term use of opioids would be reasonable for petitioner.

Administrative Supervisory Judge, the Hon. Philip Tornetta,
found that petitioner failed to prove continued Percocet treatment would reduce
Martin’s pain or permit him to function better. 
He commented that Dr. Bram did not provide medical evidence that
long-term Percocet use would permit petitioner to function better.

The Appellate Division affirmed the dismissal of petitioner’s motion, first citing to an older case involving a motion for physical therapy.  In Hanrahan v. Twp. Of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995) the Court found that the claimant who was seeking further physical therapy was required to show the treatment would “probably relieve petitioner’s symptoms and thereby improve his ability to function.”  The Court applied this logic to the Martin case in respect to the request for long-term opioids:

Here, the judge found credible the
testimony of Dr. Grob that continued prescribing of pain medication did not,
and would never, heal petitioner or relieve his condition.  During the six years he treated petitioner,
Dr. Grob concluded Martin’s pain had not been alleviated with therapy or
medication.

The Court concluded, “We are satisfied there was sufficient, credible evidence in the record to support the compensation judge’s determination that further treatment with opioid medication would not cure or relieve Martin’s injury.”

The emphasis on this case at both the trial level and appellate level was on improvement of function.  The fact that the treating doctor had observed poor pain control from Percocet over six years posed serious problems for petitioner to overcome at trial.  The case must be seen in the context of the opioid epidemic in the United States.  It demonstrates that employers can actually do something about long-term opioid use under certain situations.  Just testifying in court that opioid medication makes one feel good will not suffice.  There must be medical evidence of improvement of function under this significant decision.

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When individuals work for staffing agencies, interesting legal questions often arise.  In Uribe v. Quartz Master, A-4071-17T1 (App. Div. May 2, 2019), Alberto Uribe was injured working for On Target Staffing, LLC, a job placement agency.  On Target had a “Temporary Employee Work Agreement” with Quartz Master, where it placed Uribe.  That agreement provided that Uribe needed to discuss any work issues with On Target supervision only, would get his paychecks from On Target, and would notify On Target in the event of a work injury.

Uribe worked at Quartz Master for several years in the
warehouse.  His Quartz Master supervisor,
Mr. Patel, would tell Uribe what work to do. 
Uribe was injured at Quartz Master while performing his job duties and
received workers’ compensation benefits from On Target.  He then brought a civil law suit against
Quartz Master.

The defense to the law suit filed against Quartz Master was
simple:  Quartz Master argued that Uribe
was equally its employee as well as the employee of On Target.  Uribe essentially had two employers.  The trial judge agreed with Quartz
Master.  The Court analyzed the test for special
employment and found that Quartz Master was by law a special employer:  1) Uribe had an implied contract to work for
Quartz Master because he accepted work from them; 2) Uribe performed work
duties under the direction of Quartz Master; 3) Mr. Patel, his supervisor at
Quartz Master, directed his work; 4) Quartz Master essentially paid Uribe’s
wage by payment to On Target; 5) Quartz Master had the right to advise On
Target if it wanted to get rid of Uribe.

The Appellate Division agreed with the trial judge and affirmed the dismissal of Uribe’s civil suit under the exclusive remedy provision in workers’ compensation.  The Court was persuaded that Uribe was doing the work of Quartz Master for years.  He worked in their warehouse loading trucks with marble and granite slabs. Of equal importance to the Court was that Mr. Patel had the power to direct On Target not to send Uribe to Quartz Master.  The court said it did not matter that Quartz Master never exercised this right:  the company actually had the power to do so. 

When a client company of a temporary agency considers the benefits of working with a temporary agency, chief among them is that the client is not liable for workers’ compensation, as the staffing agency generally contracts to handle workers’ compensation.  Moreover, the client is immune from civil suit.   You could say that the client has the best of both worlds:  immunity from workers’ compensation and civil liability.

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We hear the term “idiopathic claim” quite frequently in workers’ compensation, but what does it really mean?  To begin with, “idiopathic” is a combination of two Greek words:  “idio” relating to “one’s own” and “pathic” suggesting suffering or disease.  It has come to mean any disease or condition of unknown cause.  Lawyers and practitioners have borrowed this term to argue in workers’ compensation that if a condition is idiopathic, it must be considered not causally related.  Yet the word “idiopathic” does not appear anywhere in the New Jersey Workers’ Compensation Act, and there are precious few New Jersey cases that even refer to it.

A more useful way to understand the defense is to think about the two fundamental requirements for any workers’ compensation claim:  the injury must occur during the course of employment, and the injury must arise from employment.  So a police officer is walking down steps at work and feels sudden pain in his knee.  He does not fall; he does not strike the ground.  A piece of bone broke off in the knee spontaneously for no known reason.  Is this compensable?  No, according to Meuse v. Egg Harbor Township Police Department, No. A-4553-90 (App. Div. May 6, 1992).  It is idiopathic, or more precisely, the injury did not arise from the employment.

Another way of restating this is that for an injury to be work related, it must occur during work and the premises at work must contribute to the injury.  In the above Meuse case, work had nothing to do with the injury.  It could have happened anywhere and it was pure accident that the bone broke off while walking at work.  The act of walking which the officer was doing was no different than his walking anywhere else.

Another example:  Iesha is getting ready to go home on a snowy winter day.  Her shoulder has been painful for weeks from heavy shoveling at home.  She puts on her winter coat, and as she raises her right arm, she feels a tear in the shoulder.  She is diagnosed with a rotator cuff tear.  This happened at work, but did work cause the injury to occur?  Arguably no, because Iesha puts on her winter coat all the time, whether at home or at work.  She did not slam into a door or bump into another employee when she was putting on the coat.  The shoulder just spontaneously tore while she was putting her coat on.  This is similar to the Meuse case.  The injury did not arise from work and would be considered idiopathic.

What about an employee who wears three inch platform heels to work.  While walking down the corridor, she turns right to go to the cafeteria for a cup of coffee. As she turns right, her right foot falls out of the platform shoe and she badly sprains her ankle at that very moment.  She does not fall and hit the ground.  Defense would concede that this meets the first test: it happened at work.  But did it arise from work?  Arguably no.  Work did not cause this to happen at all.  The bad sprain was produced by the act of walking with three inch platform heels.

Suppose in the above example that the employee with the platform heels slips and falls as her shoe is coming out.  She braces herself with her right hand, and she fractures the hand in two places while trying to protect herself from the fall on a tile floor.   Is the hand injury compensable?  Well, the injury occurred during work hours, and employees are generally covered while going for a cup of coffee on premises.  The act of falling and striking the hard ground caused the employee to fracture her hand.  This not only happened during work but the work premises – the hard tile floor – caused the hand to fracture in two places.  The floor is part of the work premises, and this hand injury is likely to be found work related.

In short, when we think of idiopathic claims, the better analysis is whether the injury arises from work or just from personal activities that could have happened anywhere.

The post Understanding The Idiopathic Defense appeared first on NJ Workers' Comp Blog.

Lynda Ferrari was injured at work falling down steps in April 2006.  She sought treatment for her right knee and lower back.  Dr. Joan O’Shea performed authorized surgery to address Ferrari’s right-sided herniated discs at L4-5 and L5-S1.  Ferrari experienced increased pain following surgery.  She saw multiple physicians after the surgery, seeking relief for her increased pain.

Ferrari filed a medical malpractice law suit on September 29, 2014 against Dr. O’Shea and Virtua Hospital.  The doctor filed an answer in January 2015 asserting that the law suit was barred by the statute of limitations.  Defendant relied on the employer’s IME in the workers’ compensation case performed by Dr. Anton Kemps in 2009.  In that report, Dr. Kemps opined that Ferrari developed arachnoiditis as a result of the surgery.  He provided an estimate of 5% permanent partial disability.  Defendant argued that more than two years expired from the date of Dr. Kemps’ 2009 report and the filing of the civil law suit.  The trial court ruled in favor of defendant and dismissed the case.

Ferrari appealed and argued that the two year limitations period should not have begun to run in 2009.  Both parties agreed that a medical malpractice case must be filed within two years of the accrual date, but New Jersey law makes clear that the cause of action does not accrue until the injured party discovers that he or she has an actionable claim.  Ferrari argued that the 2009 report from Dr. Kemps did not alert her that the surgery was a failure or that Dr. O’Shea may have committed malpractice.  It just said she developed arachnoiditis.

Ferrari maintained that she had no knowledge of potential malpractice until Dr. Kemps wrote another report in September 28, 2012.  In that second report, Dr. Kemps said that there was no indication that Ferrari “had any material placed within her disc spaces to replace the removed disc.”  He added that a review of the operative report did not show that any stabilization device was inserted to replace the removed disc.  There was also some evidence from a 2013 report of Dr. O’Shea that Ferrari experienced an additional herniation at the site of the operation at L4-5.

The Appellate Division disagreed with the trial judge.  “However, we agree with plaintiff that Dr. Kemps’ September 28, 2012 report was the first concrete information she received suggesting that Dr. O’Shea made a mistake in performing the surgery.  None of the other information defendant cites was reasonably likely to inform either plaintiff or her workers’ compensation attorney that Dr. O’Shea had done anything wrong.”  The Court added, “Until Dr. Kemps’ September 28, 2012 report, none of the doctors suggested that Dr. O’Shea was at fault.”

Based on this analysis, the Appellate Division reversed the dismissal of the civil law suit.  This does not mean that the Court found any evidence of medical malpractice:  it only means that Ferrari will have a chance to prove her medical malpractice case.

The case is interesting because it shows how an IME in a workers’ compensation case for permanency purposes can sometimes create the basis for a medical malpractice claim and indeed start the clock running on the injured worker’s potential civil law suit.  This is one compelling reason why parties need to read IME reports in workers’ compensation very closely.  Sometimes the tendency is to just focus on the overall percentage of disability and potential credits.  But both counsel have to pay close attention to discussions about the effectiveness of surgery.  In this case, the Appellate Division specifically noted that Ferrari’s workers’ compensation attorney would not have been alerted to potential malpractice until he read the September 2012 report.  Moreover, respondent’s lien rights depended on the revival of the medical malpractice law suit, so defense counsel must also be vigilant.  The case underscores why it often does not make sense for workers’ compensation counsel to hold onto IMEs until they get to court at a pretrial hearing.  A report such as this should be sent immediately to opposing counsel, since the Appellate Division in this case concluded that the cause of action accrued the very date of the September 28, 2012 report of Dr. Kemps.

This case can be found at Ferrari v. Joan F. O’Shea, M.D. A-3289-16T2 (App. Div. July 13 2018). We thank our friend Ron Siegel, Esq. for bringing this case to our attention.

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Some defenses, like the going-and-coming rule, get all the attention but there are other less well known defenses, like lack of timely notice, which can be very powerful as a defense in workers’ compensation.  One of the reasons that the notice defense is often ignored in New Jersey is its peculiar wording.  It has three stages to it.  N.J.S.A. 34:15-17 states initially that if notice of a work injury is not given to the employer within 14 days, then no compensation shall be due until such notice is given.  The employer cannot win in this stage, only delay payment until notice is provided.

The second stage says that if notice to the employer is given within 30 days, then the employee’s claim cannot be defeated unless the employer can show it was prejudiced by the delay. Finally, the statute provides that if notice is given within 90 days, AND, if the employee can show that the failure to provide notice was due to mistake, inadvertence, ignorance of fact or law, or fraud, then compensation shall be allowed,  unless the employer can prove that it was prejudiced by the failure to provide prompt notice. An employee automatically loses if the first notice occurs after 90 days.

Many practitioners tell clients that an employee only has to give notice within 90 days, but that is not entirely correct.  The employee must give notice within 30 days, and if the employer can show that lack of notice prejudiced the employer, the employer wins the case!  This practitioner calls it a 30-day rule.

Notice issues come into play more often than one would imagine even though most large employers have training sessions on the importance of providing notice of injury with 24 or 48 hours.  The statute does make clear that if the employer has actual knowledge of the injury, then the requirement of prompt notice is not applicable.  But a surprisingly high percentage of workers’ compensation claims involve situations where an employee has not reported a work injury for over 30 days.

Why is the notice defense important? For one thing, there are many unwitnessed accidents and it makes very little sense that an employee who is injured seriously enough to require treatment or file a claim would wait 30 days to report the injury.  If the injury were serious enough, there would usually be medical treatment shortly after the incident, and if medical treatment did occur, there should be statements to the physician about a work-related injury. When an employee waits weeks to report an alleged work injury, red flags should be flying.

Three defenses come to mind when an employee claims to have suffered a serious injury but does not report the injury promptly. First is the notice defense as outlined above, and the employer should argue that the delay in reporting prejudiced the employer.  Second is the defense that no accident ever took place, and efforts should be made to investigate the allegations to see if the accident can be disproved. Third is more of a medical defense, namely that if something did happen 30 days ago but was never reported within 30 days, then that event was almost certainly insignificant. Respondent should engage a medical expert to make this argument.  Bear in mind that most of us have had those days where we slip or fall without suffering any real injury beyond embarrassment.

Think about this:  if you were ever seriously hurt at work, why would you wait a month or even a week to report the injury?  What would be the advantage in NOT reporting it right away? It may make sense to wait a couple of days to see if the body recoveres, but 30 days?  That hardly seems plausible.  If the employee admits to treating outside workers’ compensation close in time to the alleged injury, the employer must obtain those records (often they are family doctor records) to see what history the employee provided to the unauthorized physician. Frequently there is no mention of any work injury at all. On the other hand, if the employee has not treated within 30 days, how significant could the event have been?

Winning notice defenses at 30 days comes down to proving that the employer was prejudiced by the delay.  Consider this:  if you rode a bike to the town library and then found an hour later that the bike was stolen, what are the chances that the police could help you if you waited 30 days to notify them? The fact of the matter is that people do report those kinds of incidents right away.  It’s common sense, but common sense often does not prevail in workers’ compensation.  If a claim is reported 30 days late, supervisors and witnesses may not remember the details of events 30 days ago, store security tapes may have been erased or played over, and physical conditions that may have caused the alleged accident will have changed.   Employers are almost always prejudiced by reporting delays of 30 or more days.  These reporting delays make no sense when one considers that most employers train employees about prompt reporting and include this in their employee manuals.

The only conclusion for employers is that these kinds of cases should be denied, and lack of timely notice should be aggressively pursued with the argument that the failure to timely report the injury has indeed prejudiced the employer.

The best defense against an occupational disease claim is often the statute of limitations.  That is how the employer won in Mara v. United Parcel Service, A-3691-15T4 (App. Div. August 4, 2017).

The case involved a package car driver named Craig Mara who began working for UPS in 1983.  He filed a claim petition in 2011 contending that his bilateral knee replacement surgery in 2010 was caused by decades of physical stressors on the job.  He argued that he did not realize his knee condition was work related until after he had his surgery, and since he filed within two years of the surgery date, he argued that his filing was timely.

UPS countered with evidence that Mara knew his condition was related to his work in 2006.  Mara had long-standing knee problems, including prior left knee surgery 10 years before he testified.  His personal chiropractor, Dr. Ruth, had been treating Mara for knee pain since 2003 and told him that his condition was work related in 2006.  He admitted in his testimony that he revealed to Dr. Ruth that driving at work and moving around at work caused him knee pain.  He also told Dr. Ruth that his right knee was hurting due to work activities.

The Judge of Compensation found that petitioner’s claim was not timely filed, and the Appellate Division affirmed.  The Court said, “Considerably more than two years prior to his 2011 petition, Mara was well aware that the problems in both his knees were work-related.  Long before the 2010 knee replacements, the problem with at least one knee was sufficiently severe as to require surgery to repair a torn meniscus.”

The Court also rejected petitioner’s alternative argument that his employer lulled him into believing that his knee condition was work related by having the surgery paid for by employer sponsored health insurance.  The Judge of Compensation correctly pointed out that the employer’s health insurance was separate and distinct from its workers’ compensation policy.

The case makes sense because it directly falls within the language of N.J.S.A. 34:15-34, which requires that a compensation petition must be filed “within 2 years after the date on which the claimant first knew the nature of the disability and its relation to the employment.”  The defense was able to show both elements:  that the petitioner knew the nature of his disability and thought the condition was work related.  UPS was able to prove the defense through prior medical records, particularly prior chiropractic records.  It is absolutely essential in occupational orthopedic claims that employers obtain prior chiropractic, family doctor and prior orthopedic treatment records because those records often build the entire defense to the claim, just as in this matter.

A good Global Positioning System can make all the difference in certain kinds of cases. Longstreet v. County of Mercer, A-3361-152 (App. Div. June 20, 2017) illustrates how effective this technology can be for claims involving injuries while driving work vehicles.

The case involved a claim by a heavy equipment operator against the County of Mercer.  Mr. Longstreet reported that he injured his arm when his road grader hit what petitioner believed was a manhole while snow plowing on January 27, 2015.  He reported the incident several days later.  Petitioner said he started his shift on January 26, 2015 at 7:00 p.m. and was supposed to end his shift at 3:30 p.m. on January 27, 2015.   He began the shift loading salt, utilizing a front end loader and was then instructed to begin snow plow operations on grader #57 at midnight.  Petitioner claimed the incident occurred during snow plowing at 4:00 a.m. on Nursery Road and that he brought the grader in to the County repair shop to have the blades changed.

The problem with petitioner’s version was that the GPS showed that the vehicle petitioner said he was using to plow at 4:00 a.m. was idle from midnight to six a.m.   A county witness testified that grader #57 was parked at the North Salt Dome at Mercer County Airport around midnight.  Then it was moved around 2:00 a.m. to Interstate 95 where the vehicle remained stationary until 6:38 a.m.  From 7:30 a.m. until 10:17 a.m., the grader was used only on four separate occasions on Nursery Road.

The County argued that the case must be dismissed because petitioner clearly could not have had an accident at 4:00 a.m. using grader #57 since the vehicle was not used at all until the morning hours, and then only briefly.  During trial a repair order suddenly appeared for Grader #57.  There was no repair time noted on the order.  Witnesses at the County Garage could not recall fixing this vehicle that night, but the repair order referred to grader #57.

In spite of the overwhelming evidence that petitioner could not have been injured while using grader #57 at 4:00 a.m., the Judge of Compensation found the case compensable.  The judge reasoned that it was possible that petitioner could have begun using Vehicle #57 at around midnight, switched to another vehicle after he brought grader #57 into the repair shop, and then got injured using this new vehicle.   The Appellate Division rejected this reasoning since the record showed that petitioner was adamant that he only used one grader to plow, and that was grader #57.   He never testified to using another grader, and he insisted that his injury happened in the dark of night at 4:00 a.m..  He also said that he used his personal vehicle to revisit the scene of the accident later in the morning around 10:00 a.m.

The Appellate Division reversed the ruling for petitioner and ordered a retrial of the case.  The Court said that the ruling of the Judge of Compensation was without evidential support because the GPS system established beyond any doubt that petitioner was not using Grader #57 at 4:00 a.m.  In fact, no one was using Grader #57 between midnight and 6:38 a.m.  Petitioner could not have brought Grader #57 to the county shop until after 10:00 a.m. when the vehicle was no longer being used.

The case is fascinating because without the use of a GPS system, this case would have been found compensable, as it would have been merely an issue of credibility.  The successful appeal in this case on behalf of the County of Mercer was handled by Capehart Shareholder Lora V. Northen, and her associate, John Pszwaro.

An employee works regularly in Cherry Hill, N.J. but three or four times a year is required to work at the company’s north Jersey location in Parsippany.   On the way to the Parsippany office, the employee is in a car accident and suffers serious injuries.  The employer gets the claim and confers with the carrier and defense counsel.  The question is was the employee on a special mission or is this accident barred by the going-and-coming rule, now known as the premises rule?

This issue arises quite frequently in New Jersey workers’ compensation.  A technical reading of the law leads to the conclusion that the claim is barred.  The employee is just on her way to work, even if it is not the normal place of employment.  Counsel for the employee will argue that this does not seem fair at all, but as former Supervising Judge of Bergen County, The Honorable Ray A. Farrington, used to say, “Fair is a place where people come together to see who can grow the biggest watermelon.  Let’s see what the law says.”

Here is what the statute has to say:

Employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer; provided, however, when the employee is required by the employer to be away from 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.

The key word in the statute as far as a special mission is concerned is “away” from the employer’s place of employment.   In this case, the employee is not required to be away from the place of employment at all.  It is just a different place of employment.  An employer could have multiple places of employment where an employee goes to work from time to time, and if that is the case, the employee’s journey to these distant offices is not covered.   It is only a special mission when the employee is required to be away from the place of employment.

This point was made by our Supreme Court in Novis v. Rosenbluth Travel, 138 N.J. 92 (1994).  The petitioner in that case worked in the New Jersey office of the travel company but was sent to the branch office in Connecticut to work for a period of time.  She stayed in a hotel in Connecticut and then commuted from the hotel to the branch office for several days.  One of those days she got out of her car and slipped and fell on the sidewalk on property leading from the parking lot to the building containing the employer’s branch office.  The employer did not own or control the parking lot and denied the claim.

Petitioner argued that this was a special mission.  She worked in New Jersey almost all the time and was sent to the branch office in another state to work for a short period of time.  The Supreme Court disagreed with petitioner.  It analogized her hotel to her home and held that the drive from her hotel to the branch office was her normal commute to work.  Therefore her injury was not compensable because she had not yet arrived inside the work premises of the branch office.

This is the leading case in New Jersey for multiple employer work sites, and practitioners have both this case and the statutory language above for guidance on this increasingly common issue.