Employee’s Car Accident Commuting to Work Deemed Compensable for Workers Compensation Claim

Henry Keim v. Above All Termite & Pest Control

Docket No.: A-30-22

Decided November 21, 2023

Submitted by New Jersey Workers’ Compensation Lawyer, Jeffrey Hark.

In a recent decision, the Supreme Court of New Jersey reversed the dismissal of petitioner’s claim finding an employee’s car accident was in the court of employment under the “authorized vehicle rule”.

In Keim, Above All employed Keim as a salaried pest-control technician. He performed work-related services at residential and commercial properties. To enable Keim to fulfill his responsibilities as a technician, as it did for all of its technicians, Above All provided him with an employer authorized vehicle for work use. In compliance with company policy, Keim drove that vehicle in the morning from his own residence to various worksites and then, at the end of the workday, returned home in the same vehicle. Above All allowed Keim, like its other technicians, to keep his authorized vehicle at home overnight, which benefitted Above All’s business because technicians saved time in the mornings by driving directly to job site locations.

Above All implemented rules governing technician procedures. Michael Zummo, Above All’s owner, posted daily work assignments on company iPads that provided Keim and the other technicians with their schedules for the day. Those employees were expected to clock in each morning using their iPads and at that time learn where they would perform pest-control services. Once Keim arrived at his assigned worksite, he utilized Above All’s supplies from his vehicle, such as chemicals, rodent traps, and insect dust.

Above All’s policy limited the quantity of supplies technicians could keep in their authorized vehicles overnight. Instead, the pesticides, chemicals, and other supplies required to perform the pest-control services were stored at Above All’s shop (the shop). Zummo was not only concerned that the weather could compromise the pesticides and chemicals, but he also wanted to safeguard Above All’s supplies from theft. Therefore, whether technicians had enough supplies for the workday depended on what was left over in their vehicles from the night before and the supplies needed for the new day.

Importantly, Above All had implemented a procedure that enabled technicians to collect supplies when those supplies needed replenishment. In those settings, Zummo authorized technicians to drive their vehicles directly to the shop instead of driving directly to a worksite, retrieve whatever they required, and then go directly to the scheduled worksites for the day. Keim testified he went to the shop to replenish his supplies about “two to three days a week.”

On the morning of the accident, Keim clocked in on his iPad, received his work schedule, and concluded that his vehicle lacked sufficient supplies for him to perform his scheduled pest-control services. Keim therefore drove toward the shop to obtain supplies. He planned to follow after that the schedule Zummo had posted.

On his way to the shop, Keim sustained substantial injuries in a serious car accident. Keim struck his head on the interior of his work vehicle and lost consciousness, leaving him with balance issues that worsened over time.

After Above All’s insurance carrier denied Keim’s initial workers’ compensation employee claim petition, Above All moved to dismiss the claim petition in its entirety, contending that Keim’s injuries did not arise out of and in the course of his employment.

At the evidentiary hearing, the Judge of Compensation heard testimony from Keim and Zummo and concluded that Keim was merely commuting to work when he sustained injuries in the car accident. As to N.J.S.A. 34:15-36’s “authorized vehicle rule,” he noted that although Keim “had to go and pick up” his supplies, that was “irrelevant since he was on his way to his place of employment.” He therefore dismissed the claim petition with prejudice.

The Appellate Division disagreed with the Judge of Compensation’s conclusion that Keim was simply commuting to work. Applying N.J.S.A. 34:15-36, the court determined that Keim sustained injuries while in the course of his employment because he operated an “employer authorized vehicle” and was on business “expressly authorized and directed by his employer.”

The Supreme Court of New Jersey granted certification to review and agreed with the Appellate Division that Keim’s injuries arose out of the course of employment because of the employer authorized vehicle given the tasks, directions, and guidelines  administered by Above All.

This case is important to understand that although a car accident during a commute might not be compensable for workers compensation purposes, if there are restrictions or requirements related to the job for use of a personal vehicle, it could result in a claim for workers compensation even though the car accident had nothing to do with the employment.

If you or someone you know has been, injured at work or anything related to work including commuting, or were involved in a car accident, truck crash, or slip and fall, call the experienced personal injury attorneys at Hark & Hark today. For personal injury matters including workers compensation, no money is paid up front, and fees are only collected if a recovery is made. At Hark & Hark, we represent clients for any case in any county in New Jersey Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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