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What's Hot in Workers' Comp

The New Jersey Appellate Court affirms finding of compensability under Special Mission exception of Coming and Going Rule even though the petitioner sustained severe injuries as a result of his own actions in violation of company policy.

Van Sciver v. Jersey Mechanical Contractors, Inc., No. A-3525-20 (App. Div. Nov. 15, 2022)

March 1, 2023

by Angela Y. DeMary

The petitioner sustained severe injuries, including loss of the use of an eye, brain trauma and burns, as a result of a B-Tank/gas tank explosion. One issue of contention was that the petitioner had personally placed the B-Tank in his personal vehicle at the end of a workday with the intention of delivering the tank to a customer the following day on his way to work. It was undisputed that the petitioner’s actions violated company and union policies and that he had received training that included notice of the prohibition of using one’s personal vehicle for work and that B-Tanks are not to be stored in confined spaces. Also, it was undisputed that the petitioner was acting on his own accord and not at the direction or assignment of the respondent. Despite the training and policies, the petitioner loaded the tank in his personal vehicle anyway.

While on the way to work the following day, the petitioner received a text from a superior in the company, though not his direct supervisor, asking that he pick him up and take him to work. It was while the petitioner was on the way to pick up this individual that he heard a hissing sound in his car. At that point, he remembered he had placed the gas tank in his car but had forgotten to deliver it to the customer. Also, the petitioner had passed the customer’s location. The petitioner “stopped on the side of the road, opened all the windows, got out of his car, and went to the rear of his vehicle. As petitioner opened the hatch of his vehicle, the B-Tank exploded.” 

Following a trial on the petitioner’s motion for medical and/or temporary disability benefits, the Judge of Compensation held the incident to be compensable. The judge held that the 
“special mission” exception applied, finding that: (1) the petitioner had “embarked upon a special mission of delivering the B-Tank to the customer and that mission had not ended” before the accident and (2) the petitioner was engaged in a special mission for the respondent when he was driving to pick up the higher-up in the company. The respondent appealed.

The Appellate Court heard the matter and affirmed the lower court’s decision. It is noted that the respondent made the following arguments, which were rejected by the Appellate Court: 

1.    the petitioner’s injuries did not arise out of and in the course of his employment; 
2.    the legal determinations made by the judge were not supported by the facts; 
3.    the petitioner was not injured while engaged in a special mission as he was not asked to deliver the B-Tank outside of work hours or in his personal vehicle, in violation of policies and training, and the petitioner could have refused to pick up the higher-up that morning;
4.    the petitioner should be precluded from receiving benefits as he had engaged in reckless and unreasonable behavior by placing the B-Tank in his personal vehicle; and 
5.    the claim was not covered by the Workers’ Compensation Act due to the petitioner’s willful failure to make use of reasonable and proper personal protective devices. 

It is noted that the respondent raised the final argument for the first time at appellate level. 

In rejecting those arguments, the Appellate Court found that there existed substantial, credible evidence supporting the judge’s finding that the petitioner was on a special mission for the respondent when he was en route to pick up the higher-up. With that finding, the Appellate Court indicated that it was not necessary to address whether the petitioner was also on a special mission to deliver the B-Tank to the customer. 

Specifically, the court concentrated on the fact that the petitioner was en route to pick up someone in a high level of authority for the respondent, at the request of that individual, when the incident occurred. The court also focused on the fact that it was during this commute that the tank exploded. The court affirmed the judge’s finding that the petitioner was performing a “special mission” at the time of the explosion, thus, making the incident compensable. Although the court indicated that it was not addressing the petitioner’s actions in placing the tank into his personal vehicle against policy and training, it did comment that negligence or a foolhardy action by a petitioner does not necessarily remove an incident from the realm of compensability, hinting that compensability still would have been found.
 

What’s Hot in Workers’ Comp, Vol. 27, No. 3, March 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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