McKeever v. New Jersey Bell Tel. Co.

• Decision Date: 05 May 1981
• Citation: McKeever v. New Jersey Bell Tel. Co., 430 A.2d 247, 179 N.J.Super. 29 (N.J. Super. App. Div. 1981)
• Parties: Eileen McKEEVER, Petitioner-Appellant, v. N. J. BELL TELEPHONE CO., Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 29

179 N.J.Super. 29

430 A.2d 247

Eileen McKEEVER, Petitioner-Appellant, v.N. J. BELL TELEPHONE CO., Respondent-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 15, 1980.

Decided May 5, 1981.

Thomas W. Sharlow, Metuchen, for petitioner-appellant.

Andrew Lawrie, East Orange, for respondent-respondent(Lawrie & Jennings, East Orange, attorneys).

Before Judges FRITZ, POLOW and JOELSON.

The opinion of the court was delivered by

FRITZ, P. J. A. D.

This appeal by the dependent from an adverse determination in her workers' compensation death dependency claim presents still another challenge to the adherence in New Jersey to the "going and coming" rule.The challenge is forthright.It seeks the adoption of a modification "so as to afford protection to a worker during a portal to portal trip from home to his place of employment and his return home trip."This effort must fail.Despite the infinite number of exceptions carved from it and its "rather limited applicability,"Briggs v. American Biltrite, 74 N.J. 185, 190, 376 A.2d 1231(1977), the rule that accidents occurring during routine travel between the employee's home and his place of employment ordinarily do not arise out of and in the course of the employment the so-called "going-and-coming" rule is said by our court of last resort to persist.Watson v. Nassau Inn, 74 N.J. 155, 376 A.2d 1215(1977).¹Indeed, the express "portal to portal" suggestion was rejected in Watson.Id. at 160, 376 A.2d 1215.Regardless of the virtues of a contrary rule, obviously recognized by at least a minority of our Supreme Court, we may not contravene this clear holding of our court of last resort.In re Education Ass'n of Passaic, Inc., 117 N.J.Super. 255, 261, 284 A.2d 374(App.Div.1971), certif. den.60 N.J. 198, 287 A.2d 458(1972).

However, appellant has more than one arrow in her quiver.In a multifaceted presentation she insists that the circumstances of her deceased husband's employment were such as to preclude the finding of the judge of compensation here that this accident "did not arise out of and during the course of the employment."We are in agreement with this and accordingly, we reverse.

The nature of the accident presents no problems.The decedent, a corporate attorney for New Jersey Bell Telephone Company, was driving home from work when he was involved in a three-car collision on McCarter Highway in Newark.He died as a result of injuries sustained in the accident.He was driving his own car and he was not reimbursed for traveling expenses.There is no suggestion that the locale of the accident represented any deviation from the most logical direct route between home and office, nor is there any hint of purpose other than one of returning home from work.

It is undisputed that decedent's brief case, supplied to him by his employer and in the car at the time of the accident, held handwritten notes pertaining to a matter on which decedent was currently working for his employer, in addition to such things as bulletins and pamphlets containing general information relating to the Bell Telephone System.

In his oral opinion dismissing the claim petition, the judge of compensation said:

The petitioner strongly urges the fact that her husband was carrying the briefcase with some company documents in it, apparently, to be reviewed by her husband at home, as sufficient to bring this case within one of the exceptions.She relies primarily on Paige v. The City of Rahway, 74 N.J. 177(376 A.2d 1226)(1977)andSabat v. Fedders Corporation, 75 N.J. 444(379 A.2d 255)(1978) to support her contention of compensability.She contends that her husband's work at home and "on call" status of the employees in both of the above cases are substantially similar.With that I cannot agree.Mr. McKeever was not on call at anytime by New Jersey Bell Telephone Company.He brought material home with him to read, which he was not required to do at home, nor was he under any compulsion to report his activities, so that he could be found on a moment's notice.Doing work at home and being on call are not at all similar.The respondent well sets forth the test regarding work being done at home in Sabat v. Fedders Corporation, supra, footnote three, which states,

"We note that Sabat's employment situation differs dramatically from that of employees who take work home out of a sense of self-imposed moral obligation or self-perceived necessity arising out of an inability to keep up with their work load during their normal workday.The benefits of such activities are predominantly personal with only incidental enhancement of the efficient functioning of the employer enterprise.In such case the work connection is, without more, too attenuated to justify the imposition of the cost of off-duty injury on the employer."

Furthermore, the mere fact that the decedent was carrying home material furnished by his employer is an insufficient basis upon which to award compensability.In Morris v. Hermann Forwarding Company, 18 N.J. 195(113 A.2d 513)(1955), the Court stated the plaintiff further contended that Morris was "in the course of his employment" because he was carrying home work materials furnished to him by his employer.The mere fact that a claimant while going to work or home carries with him "some of the paraphernalia of his employment" does not in itself convert the trip from personal to employment activity.

Therefore, the two contentions of the petitioner, one that he was carrying materials of his employer in his car and, two, that he was to do work at home that evening to benefit his employer, must be rejected.I have no alternative but to dismiss Claim PetitionNo. 77-28265, with prejudice, on the basis that the accident did not arise out of and during the course of the employment.

Appellant argues that this represented an inappropriately limited view of the testimony.She urges that it ignored the compelling work requirements of the attorney not only to complete a specific job assignment but also to continue professional competence by reading and the preparation of legal data for which there were simply not enough hours in the ordinary working day.She insists that the uncontroverted testimony demonstrates that the employment requirements could not be met without at-home work.We concur in this analysis.

We accept the proposition that the mere carrying home of "some of the paraphernalia of his employment" does not in and of itself render a commuting accident compensable, Morris v. Hermann Forwarding Co., 18 N.J. 195, 200, 113 A.2d 513(1955), although we observe that that decision was 4-3 and has not escaped doubtful reference in a statement questioning the basis for the going and coming rule.Ricciardi v. Damar Products Co., 45 N.J. 54, 61, 211 A.2d 347(1965).We are also aware, from the dictum in Sabat v. Fedders Corp., 75 N.J. 444, 451 n. 3, 383 A.2d 421(1978), that "a sense of self-imposed moral obligation or self-perceived necessity arising out of an inability to cope with their workload during their normal workday" will not justify work at home as sufficiently essential to render the commuting an activity arising out of and in the course of the employment.The circumstances of decedent's employment in the matter before us make any further consideration of those principles...