GUILLERMO CHAVERRI - v. CACE TRUCKING INCORPORATED -Respondent

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3619-07T23619-07T2

GUILLERMO CHAVERRI,

Petitioner-Appellant,

v.

CACE TRUCKING INCORPORATED,

Respondent-Respondent.

_______________________________

 

Submitted January 27, 2010 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation.

Weiseman DiGioia, PA, attorneys for appellant (Carl Louis Peer, on the brief).

Braff, Harris & Sukoneck, attorneys for respondent (Ira Sukoneck and Alyse Berger Heilpern, on the brief).

PER CURIAM

This workers' compensation appeal concerns whether an eye injury of petitioner, Guillermo Chaverri, occurred during the scope of his employment with respondent, Cace Trucking Incorporated ("Cace"). We conclude as a matter of law that it did, and consequently reverse the contrary ruling of the compensation judge.

The facts are substantially undisputed. Petitioner was the owner and driver of a tractor trailer. In November 2001, petitioner entered into a written lease agreement with Cace. Pursuant to that agreement, petitioner agreed to use his tractor trailer to perform hauling services exclusively for Cace. Petitioner further agreed to maintain, register and insure the tractor trailer at his own expense. In particular, Article IX of the agreement obligated petitioner to maintain the tractor trailer "in a good and safe condition and in compliance with the regulations of all applicable public authorities."

During the relevant times leading up to petitioner's eye injury, he would routinely drive his rig on weekdays to Cace's yard in Elizabeth, where he would receive hauling instructions from a Cace dispatcher. On weekends, petitioner would typically spend hours performing maintenance on his vehicle. Initially, petitioner routinely parked the vehicle at Cace's yard, where he would work on it on Saturdays and Sundays. Petitioner would pay $25 weekly to Cace for the right to park his rig there overnight. Eventually, however, petitioner concluded that the $25 fee was not worth the ongoing expense, so he began to drive his rig home on weekends. He decided to perform the maintenance at his home, using his own tools.

On Sunday, December 22, 2003, petitioner was performing maintenance on the tractor portion of the vehicle at his residence when he injured his right eye. It is undisputed that he lost all sight in that eye. He also claimed that the incident caused him a psychiatric disability.

Petitioner consequently filed a workers compensation claim against Cace. Cace opposed the claim, contending that the accident occurred outside of petitioner's employment with the company. A hearing before a compensation judge ensued, at which petitioner was the sole witness. The judge also considered as an exhibit the parties' written lease agreement. The hearing was bifurcated to address liability issues first before medical damages were considered.

At the end of the hearing on liability, the compensation judge issued a bench ruling. As a preliminary matter, the judge concluded that petitioner was an employee of Cace, not an independent contractor, given that Cace "had total control of the workday, told petitioner exactly what to do all day, and petitioner was precluded from working for anyone else during the time period that he worked for [Cace]."

Nevertheless, the judge also found that petitioner's eye injury occurred outside of the scope of his employment with Cace. The judge distinguished various cases cited by petitioner on the scope issue. The judge also found significant that petitioner was not on duty at all times, that he was not precluded by Cace from using his tractor trailer for his own use, and that Cace did not require petitioner to do his own repairs. The judge also noted that Cace was "not in the business of maintaining vehicles."

Based upon these findings, the compensation judge dismissed petitioner's claims. This appeal followed. Petitioner maintains that the judge incorrectly applied the law, and that the operative facts clearly show that petitioner was acting outside the scope of his employment when his eye injury transpired.

"An employee is entitled to compensation for an accidental injury under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -142, if the injury 'a[rose] out of and in the course of employment.'" Cooper v. Barnickel Enters., Inc., 411 N.J. Super. 343, 346 (App. Div. 2010) (alteration in original) (quoting N.J.S.A. 34:15-7); see also Jumpp v. City of Ventnor, 177 N.J. 470, 476 (2003); Acikgoz v. N.J. Tpk. Auth., 398 N.J. Super. 79, 87 (App. Div.), certif. denied, 195 N.J. 418 (2008). The definition of "employment" under the statute is multi-faceted, and includes situations in which the employee is physically away from the employer's premises but nevertheless is "engaged in the direct performance of duties assigned or directed by the employer[.]" N.J.S.A. 34:15-36; see also Cooper, 411 N.J. Super. at 346.

Courts have held that certain injuries sustained by an employee while performing a necessary aspect of a job, even if not performed during normal working hours and not on the employer's premises, may be compensable. For instance, in Barkman v. Meyer, 12 N.J. Misc. 287 (C.P. 1934), the petitioner was a dairyman whose duties included cleaning the dairy pails that he would use at the employer's farm. Id. at 287. The petitioner typically took the dairy pails home to wash, and he often walked to and from the farm. Ibid. One day, while walking to the farm, he was struck and killed by a car. Ibid. The Common Pleas Court concluded that the dairyman's death was compensable under the Workmen's Compensation Act, because carrying the dairy pails "was a necessary and essential duty to be performed as a part of the contract of employment[.]" Id. at 289. "[S]ince he was thus obliged to carry these pails to his home, the [dairyman] was necessarily engaged in the service of his employer in both going home and coming back, whether riding or walking, whether he carried his milk (or money) compensation with him or not." Ibid. In the present matter, petitioner's obligation under the lease with Cace to maintain the tractor "in a good and safe condition" likewise was "a necessary and essential duty to be performed" as part of his employment agreement.

Similarly, in Kossack v. Bloomfield, 63 N.J. Super. 322 (Law Div. 1960), the court sustained an award of compensation benefits to a police officer who had been injured while cleaning his gun in his home. The court noted that the officer had a "duty of keeping his service revolver at all times clean and serviceable." Id. at 324. Moreover, there was nothing in the police regulations or supervisory instructions that specified the time or place that the officer had to clean his weapon. Ibid. Consequently, the court found it "reasonable to assume that said cleaning and servicing could be done at any reasonably convenient place to the petitioner[,]" including "the privacy of the home." Ibid. Like the police officer in Kossack, petitioner in the present matter was required to maintain an essential item used in his work, here a tractor, in good condition, but his employer did not dictate a particular time or place for him to perform that maintenance obligation.

It has also been recognized that "an at-home injury to a telecommuter or other home-based employee is in the course of the employment if the injury occurs while business activity is actually being carried on, regardless of its relative importance." 1-16 Lex K. Larson, Larson's Workers' Compensation Law 16.10[4] (Matthew Bender, Rev. Ed. 2009). Here, petitioner's role in servicing the tractor at his residence was comparable to that of a home-based employee who performs business-related functions for his employer at his own premises.

The same conclusion of compensability was reached by the Supreme Court of Wisconsin, where a claimant had been injured while performing maintenance at a service station on a truck that he regularly drove for his employer. Fels v. Indus. Comm'n, 69 N.W.2d 225, 227 (Wis. 1955). That court found significant that keeping the truck in running order was one of the claimant's work-related obligations. Ibid.

The compensation judge denied coverage in this case, substantially because the maintenance of the tractor was not only beneficial to the employer but also was beneficial to the employee, who owned the vehicle. However, that potential for dual benefit does not eviscerate the fact that, at the time of his eye injury, petitioner was "engaged in the direct performance of duties assigned" under his employment agreement. N.J.S.A. 34:15-36. In an analogous context involving an insurance coverage dispute relating to a tractor trailer owned by an driver who hauled goods for a shipping company, this court found significant that the repairs to the vehicle inured to the benefit of the shipping company as well as to the driver-owner. Planet Ins. Co. v. Anglo American Ins. Co. Ltd., 312 N.J. Super. 233, 239 (App. Div. 1998).

 
The judgment in favor of respondent finding that the eye injury did not occur within the scope of petitioner's employment with Cace is hereby reversed, and the case is remanded to the compensation court for further proceedings. We do not retain jurisdiction.

Although Cace argues that the agreement was not a lease, the wording of the document in multiple places_(Articles III, V and XX)_refers to it as such.

(continued)

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A-3619-07T2

March 26, 2010