WILLIAM GARCIA v. WAGNER'S LAND EXPANSION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3595-07T13595-07T1

WILLIAM GARCIA,

Appellant,

v.

WAGNER'S LAND EXPANSION,

Respondent.

________________________________________________________________

 

Argued November 6, 2008 - Decided:

Before Judges Stern, Waugh and Newman.

On appeal from the New Jersey Department

of Labor and Workforce Development,

Division of Workers' Compensation,

Docket No. 2006-1841.

David M. Wasserman argued the cause

for appellant (Garces & Grabler, P.C.,

attorneys; Mr. Wasserman, on the brief).

Samuel M. Gaylord argued the cause

for respondent (Gaylord, Rubinstein &

Popp, LLC, attorneys; Mr. Gaylord,

on the brief).

PER CURIAM

Petitioner, William Garcia, appeals from a judgment denying his claim for workers' compensation benefits. The claim was denied because the judge of compensation concluded that his injuries did not arise "in the course" of petitioner's employment. Petitioner was injured while riding in the employer's vehicle being driven by his foreman en route to a bank to cash his pay check. We affirm the "order of dismissal."

For purpose of the appeal, we adopt the statement of facts set forth in petitioner's brief before us:

William Garcia was an employee of Wagner's Land Expansion, working on the company's light landscaping crew. In that role, William Garcia's supervisor was John Southard. On August 12, 2005, at approxi-mately 2:32 p.m., William Garcia was injured in a motor vehicle accident at the intersection of Hopewell Princeton Road and Crusher Road in Hopewell, New Jersey. William Garcia was riding in a Ford F-250 truck owned by Sage Wagner, the president of Wagner's Land Expansion. The vehicle was one which had the company's name on the exterior and which was used specifically for the company's business. His supervisor, John Southard, was driving the vehicle. Mr. Garcia and Mr. Southard were on their way to a job site to assist a different company crew. For that reason, Mr. Garcia had not punched out his timecard before departing with Mr. Southard. On their way from one job site to another, Mr. Southard was driving Mr. Garcia to the Hopewell branch of PNC Bank, where Sage Wagner had previously made arrangements for his employees to be able to cash their checks even if they did not have an account with that bank. Due to their involvement in the accident, Mr. Garcia and Mr. Southard did not ultimately reach the other job site, and the other Wagner's Land Expansion crew needed to work late in order to complete their work. In the motor vehicle crash, William Garcia suffered orthopedic, neurological, and neuropsychiatric injuries to his head, back, and to both of his legs.

[Footnote and transcript references omitted.]

In finding that the injuries were not compensable, the judge of compensation concluded:

I find that regardless of which story is correct, the fact that Mr. South[a]rd was driving Mr. Garcia on a personal mission to the bank (be it either solely a personal mission as per South[a]rd's claim or a deviation from work travel of a personal nature as Mr. Garcia claims) renders this incident non-compensable as it did not arise out of and in the course of Mr. Garcia's or Mr. South[a]rd's employment.

The map of Hopewell which was admitted as R-1 in evidence on March 12, 2007 clearly shows that a trip to the PNC bank in the Borough of Hopewell was more than a minor deviation from either going to the job site to which Mr. Garcia referred or as Mr. South[a]rd indicated he was just merely going to the bank and was going to return with Mr. Garcia to the job site. The issue of minor deviation from employment is fully discussed by the Supreme Court in Jumpp vs. City of Ventnor, 177 N.J. 470 (2003).

The Court held in that case that a deviation where the employee stopped at a post office with his supervisor's permission to pick up his personal mail placed his activities out of the workers' compensation arena in that it was a totally personal situation.

Therefore, I find that Mr. Garcia's accident on August 12, 2005 is not compensable . . .

We agree with the conclusion reached by the judge of compensation.

The 1979 amendments to the Workers' Compensation Act define "employment" away from the employer's premises to include only "direct performance of duties assigned or directed by the employer," but includes paid travel time to and from a job site or while utilizing "an employer authorized vehicle." N.J.S.A. 34:15-36. In Jumpp v. City of Ventor, 177 N.J. 470 (2003), a city employee "was permitted to make brief stops at local establishments" while traveling in a city owned vehicle. He was nevertheless denied compensation for a fall suffered when he parked and left the vehicle (with the motor running) "to retrieve his personal mail from a local post office located on the route to one of his job sites, a habit that [his supervisor] knew about and allowed." Id. at 474. Compensation was denied because eligibility for compensable injuries to off-premise workers, like on-premises workers, must be "based on a finding that the employee is performing his or her prescribed duties at the time of the injury." Id. at 482.

In Sager v. O.A. Peterson Constr. Co., 182 N.J. 156 (2004), a compensation award was upheld by the Supreme Court in circumstances in which a construction worker was injured en route back to the job site after eating dinner when the work day was extended and the workers could not return from the work site in New York to New Jersey due to the events of September 11, 2001. The Court determined that the decision to go to dinner and extend the work day was an authorized "directive" of the on-site supervisor. Id. at 158, 164-65. "Because the employee was on a personal errand, and because [the Jumpp] analysis centered on the 'minor deviation rule'" the Sager Court distinguished Jumpp, 182 N.J. at 167, (quoting Jumpp 177 N.J. at 475-76), although finding it consistent with its conclusion that "employees who are where they are supposed to be, doing what they are supposed to be doing, are within the course of employment whether on- or off- premises" 182 N.J. at 167, (quoting Jumpp, 177 N.J. at 483).

The Sager Court further quoted Lozano v. Grank DeLuca Constr., 178 N.J. 513 (2004) for the holding that "an employee must demonstrate an objectively reasonable basis in fact for believing that the employer had compelled participation in the activity." Ibid. (quoting Lozano, supra, 178 N.J. at 534).

In Sager no remand was necessary to determine whether petitioner had a "reasonable belief" that the directive had to be followed because the on-site supervisor's testimony was found to be credible. Id. at 168. In fact, Sager was granted compensation because the supervisor's "credible testimony support[ed] the conclusion that Sager was acting under the direction of his employer when the automobile accident occurred," Id. at 165, and the Supreme Court emphasized that the judge of compensation's findings "must" be upheld when there is "sufficient credible evidence in the record to support [her] conclusion." Id. at 164.

Here, as in Jumpp, the employer's vehicle was being used, and petitioner was riding between job sites or was going to return to the original job site after cashing the check. He was on a "personal errand" despite the fact his foreman was driving. Petitioner distinguishes Jumpp because "Garcia's supervisor was not only present in the vehicle, he was driving Garcia to their destination." However, the distinction is not material because, although the petitioner was "utiliz[ing] an employer authorized vehicle," he was not engaged in work as "assigned or directed by the employer." N.J.S.A. 34:15-36. Nor is there any proof or suggestion that the employer "assigned or directed" petitioner to cash his check at the time, or that he was doing it at the direction of his employer. In any event, there was sufficient credible evidence in the record to support the determination of the judge of compensation.

Affirmed.

There was a dispute in the evidence as to whether Southard was going to take petitioner to another job site or "return him to the garage" after the check was cashed. Petitioner testified that Southard "told" him they were going to stop and cash the check, while Southard testified he asked petitioner "if he wanted a ride to cash his check."

Employees injured off premises may receive compensation for injuries during "minor deviations" from work or while "embarked on a personal errand that would have been compensable if carried out by an on-premises employee." Id. at 484. Petitioner claims this is such a case.

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A-3595-07T1

November 24, 2008