The Appellate Division of the Superior Court of New Jersey has reversed the dismissal of a New Jersey man's claim for workers compensation, ruling that he was injured while acting within the course and scope of his employment. The case is called Keim v. Above All Termite & Pest Control, 2022 N.J. Super. Unpub. LEXIS 1865 (N.J. Super. Ct. App. Div. 2022). Please note that this opinion is unpublished; refer to New Jersey Rule 1:36-3 for rules relating to the citation of unpublished opinions.
Henry Keim worked as a pesticide applicator for Above All Termite & Pest Control (Above All). The company assigned him a vehicle to drive from his home to Above All's premises and to the residential and commercial properties that had requested pest control services. Keim, like other Above All employees, kept small amounts of pest control chemicals in that vehicle, per company policy, to reduce exposure to heat and cold and decrease the chances of stolen product. This practice required Above All employees to drive to the company premises to ensure they had the proper amount of materials needed for the day. In mid-July 2020, Keim was driving to Above All to gather the required chemicals when he was involved in a major auto accident, suffering injuries to his head and torso; Keim promptly reported the accident to Above All. That October, Keim reported he had experienced balance problems. At the advice of Above All, Keim sought medical treatment, where a "CT scan revealed bilateral subdural hematomas that required immediate surgery."
Keim filed a petition for workers compensation benefits a few weeks after his surgery, which Above All denied on the basis that Keim was injured outside the scope of employment; Above All followed the denial with a motion to dismiss Keim's claim. Keim, in turn, sought "temporary and/or medical benefits" for post-op treatment as well as temporary disability, both of which Above All contested were not compensable. The parties had a hearing before a Judge of Workers Compensation (JWC) in spring 2021, who dismissed Keim's claim with prejudice–he couldn't amend his petition to fix alleged problems with it–because "[h]e had not yet come under the control [of] his employer" (quoting JCW). It did not matter to the JCW that Keim was obligated to go get the pest control chemicals because Keim "was on his way to his place of employment." (Quoting JCW). Keim appealed.
The New Jersey Workers Compensation Act specifically stated that employment, for workers compensation purposes, started when an employee gets to the work premises and stopped when the employee left the premises, with a limited except for employees who were required to leave the employer's premises by the employer "in direct performance of duties assigned or directed by the employer." (N.J.S.A. 34:15-36).
Above All claimed Keim's injuries weren't compensable because he had not arrived at the employer's premises at the time of injury. Keim asserted that he was performing work-related duties as assigned and directed by Above All when the collision occurred, not engaging in personal activities. He also argued that the JCW had not properly analyzed certain exceptions that would have allowed him to receive benefits.
The appellate court pointed to an exception that allowed for workers compensation benefits when an employee's work duties "require[d] authorized operation of a business vehicle on business authorized by the employer." (Internal quotes omitted). The court also noted a case from the New Jersey Supreme Court that held "when an employer directs or requires an employee to undertake an activity, that compulsion, standing alone, brings an activity that is otherwise unrelated to work within the scope of employment." (Quoting Sager v. O.A. Peterson Constr., Co., 862 A.2d 1119 (N.J. 2004); internal quotes omitted).
According to the court, Keim's injuries were well within the scope of the "authorized operation of a business vehicle" exception. Company policy required employees to keep a minimal amount of chemicals in their company-assigned vehicles for safety reasons. Keim was compelled to visit Above All's physical premises to ensure he had the proper amount of chemicals for the day. These facts were sufficient to distinguish Keim's case from an instance where an employee was "merely commuting to work or engaging in personal activities unrelated to work."
The dismissal of Keim's claim was reversed, and the matter was sent back for further proceedings.
Editor's Note: The nature of Keim's job meant he did not work at a set location, the "going-and-coming rule," which precludes workers compensation for employees injured while on their way to or from work, didn't quite fit. Rather, the Superior Court pointed to Jumpp v. City of Ventnor (828 A.2d 905, N.J. 2003), where the New Jersey Supreme Court stated that employees like Keim, "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, except when they are commuting." Since Keim was engaged in an activity required by his employer, rather than commuting, he was injured within the course of his employment.
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