IN THE MATTER OF ROCCO COLELLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2284-09T3

IN THE MATTER OF

ROCCO COLELLA,

MOTOR VEHICLE COMMISSION.

________________________________________________

April 29, 2011

Submitted March 29, 2011 - Decided

Before Judges Carchman and Messano.

Onappeal from a Final Administrative Decision of the Civil Service Commission, Docket No. 2009-1088.

Richard P. Tonetta, attorney for appellant Rocco Colella.

Paula T. Dow, Attorney General, attorney for respondents Civil Service Commission and New Jersey Motor Vehicle Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Sudha V. Raja, Deputy Attorney General, on the brief).

PER CURIAM

Rocco Colella appeals from the final decision of the Civil Service Commission (the Commission) denying his request for sick leave injury (SLI) benefits. We granted the Commission's motion, and Colella's cross-motion, to supplement the agency record. Having considered the arguments raised in light of the supplemented record and applicable legal standards, we affirm substantially for the reasons expressed in the Commission's order of December 3, 2009.

The facts are undisputed. On July 17, 2008, Colella was employed by the Motor Vehicle Commission (MVC) as a Commercial Bus Vehicle and Driver Test Administrator. As such, he was required to drive from his home to the particular site where he was to conduct an inspection. Colella was assigned an MVC-owned van equipped with the necessary tools, instruments and computer equipment to perform the inspections.

On the day in question, Colella logged on the computer at 7:05 a.m. and proceeded to drive from his home in Bridgeton to his first assignment in Cape May. Approximately thirty minutes later, while en route, he was involved in a motor vehicle accident in Port Norris. He suffered several injuries, including a compression fracture of his T2-T3 vertebrae. Following the accident, Colella underwent surgery and was never medically cleared to return to work. His surgeon suggested that Colella consider early retirement, which he requested effective January 1, 2009.

In the interim, Colella applied for SLI benefits. On August 28, 2008, MVC denied his request citing N.J.A.C. 4A:6-1.6(e)(1), which provides: "For the injury to be compensable, it must occur during normal work hours or approved overtime . . . . Injuries which occur during normal commutation between home and the work station or home and a field assignment are not compensable." Colella appealed the decision to the Commission and requested a plenary hearing.

Citing N.J.S.A. 34:15-36, Colella argued that he was in the course of his employment when the accident occurred because he was required to use his MVC-issued vehicle to drive to the inspection site and perform the duties assigned by his employer. He contended that he was working at the time of the accident and entitled to SLI benefits.

The Commission initially deemed Colella's request for a hearing to be unnecessary because there was no "material and controlling dispute of fact." See N.J.A.C. 4A:2-1.1(d) ("Except where a hearing is required by law or these rules, or where the Commissioner . . . finds that a material and controlling dispute of fact exists that can only be resolved by a hearing, an appeal will be reviewed on a written record."). Citing N.J.A.C. 4A:6-1.6(e)(1), the Commission concluded:

[Colella] was commuting between home and a field assignment at the time of the accident . . . . Whether [he] was in his personal vehicle or one owned by the State has no bearing on this determination. Moreover, the fact that he had "clocked in" is immaterial given the rule cited.

The Commission entered the order under review.

Before us, Colella argues that he had no "'normal' work hours" and was injured during work hours approved by his supervisor. Further he contends that his MVC-issued vehicle was his "'work premises'" as defined by regulation; therefore the injuries did not occur "'during normal commutation' between home and a field assignment." Lastly, he cites as authority N.J.S.A. 34:15-36, which defines "employment" in relevant part as follows:

[W]hen 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; but the employment of employee . . . who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.

We find none of the arguments to be persuasive.

Our "review of a final agency [action] is [quite] limited." In re Carter, 191 N.J. 474, 482 (2007). "[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999). We "'will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 581 (1980)).

Although we are not bound by an administrative agency's legal opinions, Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999)), the "'agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)).

The Legislature specifically granted the Commission the authority to promulgate rules regarding sick leave benefits. See N.J.S.A. 11A:6-8 ("Leaves of absence for . . . employees in State service due to injury or illness directly caused by and arising from State employment shall be governed by rules of the Civil Service Commission."). "As the administrative agency empowered to promulgate and enforce the Civil Service Act, the Commission's construction of the act and its regulations is entitled to great weight." Appleby v. Civil Service Comm'n, 190 N.J. Super. 249, 255 (App. Div. 1983).

Colella points to a September 20, 1995 memo from his supervisor notifying all inspectors that "normal work hours are 8: 00 AM to 4:30 PM, portal to portal," and approval was required "[i]f for any reason you leave your home a half hour early." Colella contends that he obtained this prior approval. The Commission, in materials submitted to supplement the record, included two other memos from Colella's supervisor. The first, dated July 28, 1999, and sent to all investigators, clearly indicated that "[t]ravel time to and from your field destination is not included in your work hours." Colella has certified that to the best of his knowledge, he did not receive this memo. A third memo, dated April 26, 2004, set forth the daily work hours as 7:30 a.m. to 4:00 p.m.," and required all inspectors "to be at their assigned location at their official starting time."1

In our opinion, the memos do not contravene the clear language of the regulation which excepted from compensation any claim for injuries occurring during commutation from home to a field inspection site.

Colella's claim that his vehicle was his "work premises" and, by extension, any injury was compensable if it occurred while he was in the van, is without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). N.J.A.C. 4A:6-1.6(d) provides:

Any accident resulting in injury for which the employee seeks compensation must occur on the work premises.

1. Work premises are the physical area of operation of the appointing authority, including buildings, grounds and parking facilities provided by the State.

2. An injury occurring off the work premises is compensable only when the employee is engaged in authorized work activity or travel between work stations.

Colella's vehicle was not the "work premises" as defined. For reasons already cited, although Colella was engaged in "authorized work activity," injuries that occur during a commute between "home and a field assignment" are excluded from compensation. N.J.A.C. 4A:6-1.6(e)(1).

Finally, we have in the past expressly rejected any contention that provisions of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, are relevant to claims made for SLI benefits. See Appleby, supra, 190 N.J. Super. at 255 (citations omitted) ("point[ing] out the different purposes of the two acts").

Affirmed.

1 We do not consider a fourth memo furnished by the Commission that was issued after the accident in question.