HECTOR VALCARCEL v. FSA MANAGEMENT CO., INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4001-05T24001-05T2

HECTOR VALCARCEL,

Petitioner-Appellant,

v.

FSA MANAGEMENT CO., INC.,

Respondent-Respondent.

_____________________________________

 

Argued December 6, 2006 - Decided March 14, 2007

Before Judges Collester and Sabatino.

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

Gerald F. Della Sala, argued the cause for appellant (Thomas E. Hood, attorneys; Mr. Della Sala, on the brief).

Richard J. Williams, Jr., argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Williams, of counsel and on the brief; Anthony J. Fredella, on the brief).

PER CURIAM

Petitioner Hector Valcarcel appeals a March 13, 2006 final judgment of the workers' compensation court dismissing his claim arising out of a motor vehicle accident. The dismissal was based upon the court's determination that petitioner was not acting in the scope of his employment when the accident occurred. We affirm.

The pertinent facts that emerged at the two-day workers' compensation trial are largely not in dispute. In April 2000 Valcarcel accepted an offer of employment with respondent FSA Management Co., Inc. ("FSA"). FSA is in the business of managing residential apartments in various locations. FSA hired Valcarcel to work as superintendent of its apartment complex in Bridgewater. Occasionally, FSA required Valcarcel to perform maintenance at other apartment complexes it owned and operated. FSA supplied Valcarcel with the use of a company vehicle, a Ford pickup truck. FSA also provided Valcarcel with an apartment unit at the Bridgewater complex, where he resided.

In addition to his work as a superintendent for FSA, Valcarcel operated a private home remodeling business. That personal business required Valcarcel to travel to various job sites. The trial testimony reflects that Valcarcel's supervisor at FSA, Kevin Seltzer, was aware of Valcarcel's side business. However, neither Seltzer nor Valcarcel testified that Seltzer had permitted Valcarcel to pursue his side enterprise during FSA's business hours, which were generally 8:00 a.m. to 4:00 or 4:30 p.m. Nor did Seltzer allow Valcarcel to use FSA's company truck for his personal business. Seltzer did acknowledge, however, that on one occasion Valcarcel was asked to drive the company truck to deliver masonry materials to the home of Seltzer's father in Jersey City. The record further reflects that Seltzer did allow Valcarcel at times to use the truck for personal, non-business uses such as getting lunch.

On March 29, 2001, Valcarcel needed to travel from FSA's premises in Bridgewater to its separate property in Highland Park. Valcarcel got into the company truck. However, instead of driving straight to Highland Park, Valcarcel diverted his route and stopped at a private job site in Plainfield where he had been remodeling a private residence. After Valcarcel left that job site, he was involved in a motor vehicle accident in Plainfield.

Valcarcel was injured in the accident, and filed a workers' compensation petition against FSA. FSA denied responsibility for Valcarcel's injuries, contending that Valcarcel was outside the scope of his employment for FSA when the accident occurred.

After hearing the trial testimony of Valcarcel and Seltzer, Judge Joel Gottlieb of the Division of Workers' Compensation ruled that Valcarcel was not entitled to coverage. In his oral decision of March 13, 2006, Judge Gottlieb found that Valcarcel "was on personal business when he was involved in the accident in question." The judge further noted that "[b]y his own admission, the job in Plainfield was in no way related to his employment, nor did [Valcarcel] have permission to use the vehilce for that use that day." Invoking the standards of Jumpp v. City of Ventnor, 177 N.J. 470, 482 (2003), the judge concluded that Valcarcel had not "embarked on a personal errand that would have been compensable if carried out by an on-premises employee." Consequently, the judge dismissed Valcarcel's petition.

On appeal, Valcarcel contends that the compensation judge erred in his factual findings and also misapplied the law. We disagree.

Our scope of review is limited. With regard to the facts, we must simply "examine the record to determine whether sufficient or substatial credible evidence exists therein to support" the administrative tribunal's decision. Dore v. Bd. of `Educ., 185 N.J. Super. 447, 453 (App. Div. 1982). See also Lindquist v. City of Jersey City Fire Dep't., 175 N.J. 244, 262 (2003). We also must be satisfied that the decision on review comports with the applicable law, recognizing the expertise of the compensation court in interpreting and applying the statutes within its purview. Lindquist, supra, 175 N.J. at 262. The compensation judge's "findings and legal determinations" should be sustained unless they are "manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Ibid.

The pertinent statutory provision here is N.J.S.A. 34:15-36, which was enacted in 1980. It defines the worker's scope of employment, for purposes of compensation coverage, as follows:

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; but the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any 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.

[N.J.S.A. 34:15-36 (emphasis added).]

This provision has been interpreted by our courts to only allow coverage for off-premises employees who are engaged in authorized services for their employers, or who have been injured in the course of a "minor deviation" from their duties. Jumpp, supra, 177 N.J. at 484.

In Jumpp, the Court concluded that an employee was not eligible for workers' compensation benefits arising out of an injury he incurred while returning from checking a personal post office box. Id. at 482-84. The Court reached that determination despite the fact that the employee had been checking his personal post office box on a daily basis with his employer's acquiescence. Id. at 475. The Court agreed with our own observation in Jumpp that N.J.S.A. 34:15-36 expressed a "clear legislative mandate sharply curtailing compensability for off-premises accidents." Id. at 482, quoting Jumpp v. City of Ventnor, 351 N.J. Super. 44, 49 (App. Div. 2001). Based upon that legislative policy, and the express terms of N.J.S.A. 34:15-36, the Court determined that:

[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.

[Jumpp, supra, 177 N.J. at 484. (citations omitted)]

The compensation judge did not stray from these principles in his analysis of the circumstances here. It is undisputed that Valcarcel's accident in Plainfield occurred in an area "not under the control" of his employer, FSA. N.J.S.A. 34:15-36. It is also uncontroverted that Valcarcel was not engaged in "the direct performance of duties assigned or directed" by FSA at his private job site in Plainfield. Id.

Valcarcel emphasizes that he was heading to FSA's property in Highland Park when his accident in Plainfield occurred. Even if that is true, his intended ultimate destination does not make his unauthorized detour to Plainfield minor in nature. Although Valcarcel was driving a company vehicle, we do not read the phrase "traveling to and from a job site" in N.J.S.A. 34:15-36 to provide him with coverage in these circumstances. Under the Court's interpretation of the statute in Jumpp, Valcarcel's diversion to Plainfield for his side business was not the sort of activity that "would have been compensable if carried out by an on-premises employee." Jumpp, supra, 177 N.J. at 484. We take judicial notice under N.J.R.E. 201 that the City of Plainfield is not on any direct, or even reasonably direct, driving route from Bridgewater to Highland Park. Moreover, Valcarcel's deviation to Plainfield, unlike the circumstances in Jumpp, was not condoned by his employer.

Valcarcel argues, in essence, that he should have compensation coverage because the company truck he was driving was headed in the direction of Highland Park when his collision occurred. That surely is not a dispositive fact, for it would logically signify that Valcarcel would likewise be entitled to coverage if, say, he had traveled several hours away for personal business to Cape May or to Connecticut before heading to Highland Park. Similarly, in Jumpp, the fact that the employee was injured while returning from his errand to the post office did not support his claim for coverage. Jumpp, supra, 177 N.J. at 474-484.

The disposition of the compensation judge is supported by substantial credible proofs in the record, and is wholly consistent with Jumpp and similar cases under the statute. See, e.g., Chisholm-Cohen v. County of Ocean, 231 N.J. Super. 348 (App. Div. 1989) (denying coverage to employee who was injured in her employer's vehicle, where she had driven home for dinner and a change of clothes instead of proceeding directly to an evening training program required by her employer); Walsh v. Ultimate Corp., 231 N.J. Super. 383 (App. Div.) certif. denied, 117 N.J. 92 (1989) (denying coverage where employee died while driving on a sightseeing trip, even though he was heading to a hotel where he planned to do work for his employer); Ward v. Davidowitz, 191 N.J. Super. 518 (App. Div. 1983) (denying coverage where an employee was injured while returning to work after a midday lunch break).

We have carefully considered the remaining points advanced on appeal and find them lacking sufficient merit to warrant any further discussion in this opinion. See R. 2:11-3(e)(1)(E).

Affirmed.

 

Valcarcel testified that Seltzer specifically told him to go to the Highland Park location, while Seltzer could not recall such a directive. The factual disparity is inconsequential because FSA does not contest Valcarcel's need to go to Highland Park that day.

(continued)

(continued)

9

A-4001-05T2

March 14, 2007