Your Injury Happened Where? New Jersey Appellate Division Rejects Two Attempts to Avoid the Going and Coming Rule

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Two recent decisions by the New Jersey Appellate Division upheld the strength of the “going and coming” rule to bar workers’ compensation claims that did not occur at work. In New Jersey, injuries that occur during routine travel to and from work are not compensable. This comes from principle found in N.J.S.A. 34:15-36 (defining “employment”) that generally, employment starts when the employee arrives at his place of employment, and terminates upon leaving the place of employment. Section 36 was amended in 1979 to decrease the scope of the going and coming rule to limit compensation to accidents occurring “when the employee is engaged in the direct performance of duties assigned or directed by the employer.”

In Liu v. 4D Security Systems, A-3591-15T1 (App. Div. May 1, 2017), the petitioner was an engineer whose responsibilities included testing the company’s hardware and software at an army base in the United Arab Emirates (UAE). Shortly after his arrival in the UAE, the petitioner visited a museum to gain an understanding for the country and culture. He sustained an injury while exploring an exhibit at the museum. The Appellate Division upheld dismissal of the claim because the petitioner was not in the course and scope of his employment when the injury occurred. He was visiting a museum, not on a “special mission” at the direction of his employer. The Appellate Division also rejected the petitioner’s arguments that he was “on call” when the injury occurred, and that the visit to the museum was a “mutual benefit” to his employer. In its rejection of these arguments, the court noted that there were no post-1979 decisions cited in support of either argument.

 The Appellate Division rejected a similar argument in Fonseca v. Intertek, A-4574-15T2 (June 20, 2017). The petitioner was a petroleum inspector injured in a motor vehicle accident, which allegedly occurred while he was returning to a job site. He picked up petroleum samples from a job site, brought them to his employer’s laboratory, and claimed that he had to return to the job site to complete his duties. His employer argued that he had completed his work for the day, and had no reason to return to the job site. The Appellate Division upheld the trial court’s conclusion that the employer’s version of the events was more credible. The court also rejected the petitioner’s argument that he was “on call,” pointing to no post-1979 decisional support.

Liu and Fonseca highlight the fact-sensitive nature of the going and coming rule, and the importance of credible testimony by employers to highlight when an employee is or is not at work. It is important to get a recorded statement from the claimant as close to the accident as possible addressing what they were doing, and where they were going when the accident occurred. If the trial judge believes that the injured worker was not at work when the injury occurred, then the claim will be dismissed. It is also reassuring from a defense perspective to see the Appellate Division reject pre-1979 arguments. The going and coming rule remains a strong defense in New Jersey.

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