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(As Subrogor of Kevin Smith),



Drexel University,


April 17, 2015


Before Judges Yannotti and Hoffman.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2011-32389.

Richard J. Riordan argued the cause for appellant (Green, Jasieniecki & Riordan, LLC, attorneys; Mr. Riordan, of counsel and on the briefs).

Walter F. Kawalec, III argued the cause for respondent (Marshall Dennehey Warner Coleman & Goggin attorneys; Mr. Kawalec, on the brief).


Petitioner High Point Insurance Company ("High Point"), as subrogor of Kevin Smith ("Smith"), appeals from a November 25, 2013 order entered by the workers' compensation court dismissing with prejudice petitioner's claim because it failed to sustain its burden of proof demonstrating employment at the time of the accident. We affirm.


Smith was a Ph.D. student and teaching assistant at respondent Drexel University ("Drexel"). On September 2, 2011, he drove a Drexel vehicle to a site in the Pine Barrens to conduct research for his graduate dissertation. When Smith was driving the vehicle back to Drexel, he was involved in a car accident and injured.

Smith never filed a claim petition, but instead filed an application for personal injury protection ("PIP") for benefits through High Point, the automobile insurance carrier for his parents. After paying the PIP benefits, High Point filed a workers' compensation petition, as subrogor of Smith, seeking reimbursement of the benefits paid on the theory that Smith was in the course of his employment when the accident occurred. On January 31, 2012, Drexel filed an answer denying that the accident was compensable.

At the conclusion of trial, where Smith was the only witness, the judge of compensation found that Smith's accident did not arise out of or occur in the course of his employment because his teaching assistantship was incidental to his education. The judge thereafter issued an amplification of her decision, pursuant to Rule 2:5-1.


Our review of a workers' compensation court's decision is "limited to whether the findings made could have been reached on sufficient credible evidence present in the record . . . with due regard also to the agency's expertise[.]" Hersh v. Cnty. of Morris, 217 N.J. 236, 242 (2014) (alterations in original) (citations and internal quotation marks omitted); see also Ramos v. M & F Fashions Inc., 154 N.J. 583, 594 (1998) ("The factual findings of the compensation court are entitled to substantial deference."). However, we review a compensation judge's legal findings de novo. Williams v. A & L Packing & Storage, 314 N.J. Super. 460, 464 (App. Div. 1998).

The pertinent statutory provision here is N.J.S.A. 34:15-36, which 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.]

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 v. City of Ventnor, 177 N.J. 470, 484 (2003).

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 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)).

Petitioner argues that Drexel "entwined" Smith's personal graduate studies and teaching assignments to such an extent that traveling for his research fell into the category of him performing his prescribed job duty and, therefore, he should be eligible for workers' compensation. We disagree and conclude there is sufficient credible evidence in the record to support the compensation judge's findings that Smith's injuries did not arise out of or in the course of his employment.

The disposition of the compensation judge is wholly consistent with Jumpp and similar cases under the statute. See, e.g., Chisholm-Cohen v. Cnty. of Ocean, 231 N.J. Super. 348, 352 (App. Div. 1989) (denying coverage to an 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, 390-91 (App. Div.), certif. denied, 117 N.J. 92 (1989) (denying coverage where an 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, 523-24 (App. Div. 1983) (denying coverage where an employee was injured while returning to work after a midday lunch break).

Smith's Ph.D. program did not require that he work as a teaching assistant. He chose to accept that position in an attempt to offset the cost of the Ph.D. program. Smith used Drexel's vehicle to reach the Pine Barrens for his personal research, not to engage in work as a teaching assistant. Moreover, Smith had no teaching responsibilities the week of the accident because classes were not in session. Therefore, there is sufficient credible evidence to support the conclusion that there was no connection between the accident and Smith's employment.