I was injured on my way to work. Can I make a Workers Compensation claim

My boss told me to come to work or I would be fired!  I was injured on the way, can I make a comp claim??? These are really interesting and legal questions which the New Jersey appellate court revisited this week.

Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark

In this case employee Minter called out of work because he could not get a ride due to a snowstorm. His boss called him back and told him he must come to work because he is considered a “essential employee and is needed to feed the nursing home residence.  He instructed the employees supervisor to pick him up on his way into work. While driving and they were involved in a car crash. Minter sued the driver of the car he was in, the car that struck him, and attempted to make a Worker’s Compensation claim.  There are several issues at hand in this case but the most important one is whether, at the time of the crash, he was in a course of his employment. If he was, is only remedy and against the driver of the car he was in would be a Worker’s Compensation claim. The court reviewed the case law and determined that Mr. Mintner was in the course of his employment because he was directed by his boss to come to work and was under the control of his employer.

Following is the legal analysis which examines into the ability of the employer to control the activity of the employee ‘away’ from the actual work site. The key to this decision is if the employee is performing a “compelled activity” away from the actual job location on  behalf of the employer. If so, the employee shall be considered in the course of his employment.  Reviewing the facts of this case clearly show Mr. Minter was required to come to work and if not he was going to be fired. The employee’s subject of believes are not enough to support the compelled activity belief nevertheless. The court was required to review the testimony of the supervisor, and other facts surrounding the employee’s compelled obligation to come to work and come under the control of the employer. Clearly in this case the employer’s direct order that the employee show up because he was an essential employee required to feed the residence was more than enough.

The court’s analysis is as follows.

We also discern no error in the court’s determination that Minter was acting in the course of his employment when the accident occurred. We review the trial court’s grant of summary judgment de novo, applying the same standard as the trial court under Rule 4:46-2(c). Henry v. N.J. Dep’t of Human Servs., 204 N.J. 320, 329-30 (2010). We first review the governing legal principles. The Compensation Act provides an exclusive remedy for injuries sustained in an “accident arising out of and in the course of employment . . . .” N.J.S.A. 34:15-7. Generally, the Compensation Act covers accidents on the employer’s premises. “Employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment . . . .” N.J.S.A. 34:15-36. This so-called “premises rule” generally bars compensation for accidents during a worker’s travel to and from work. Zelasko v. Refrigerated Food Express, 128 N.J. 329, 336 (1992).

However, the Supreme Court has recognized an exception to the rule. The Supreme Court has held that “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.’” Sager, 182 N.J. at 163 (quoting Lozano v. Frank Deluca Constr., 178 N.J. 513, 532 (2004)). To prove compulsion, “the injured employee must establish that he or she engaged in the activity based on an objectively reasonable belief that participation was required.” Lozano, 178 N.J. at 518. “Whether an employee’s belief is objectively reasonable, will depend largely on the employer’s conduct . . . .” Id. at 534. The Court identified a non-exclusive list of factors relevant to the determination: 

1. a) whether the employer directly solicits the employee’s participation in the activity; 
2. b) whether the activity occurs on the employer’s premises, during work hours, and in the presence of supervisors, executives, clients, or the like; and 
3. c) whether the employee’s refusal to attend or participate exposes the employee to the risk of reduced wages or loss of employment. [Id. at 534.] 
4. d) An employee’s subjective impression of compulsion alone is not sufficient. Id. at 534-35.

The trial court concluded that under the Sager-Lozano “compelled activity” exception, Minter was engaged in the course of employment. We agree. Certainly, the compelled activities in Lozano and Sager differ from the compelled activity in Minter’s case. In Lozano, the employer alleged he was compelled to drive a go-kart at the premises of the employer’s customer, and was injured while doing so. 178 N.J. at 517. In Sager, the employee was compelled to travel away from a construction work site to take a meal, and was injured on his return. 182 N.J. at 158. The Court highlighted the recreational and social nature of those types of activities, stating, “when an employer compels an employee’s participation in an activity generally viewed as recreational or social in nature, the employer thereby renders that activity work-related as a matter of law.” Lozano, 178 N.J. at 518. By contrast, Minter was injured during a journey to work at his usual workplace. He was not engaged in a recreational or social activity. Yet, the Court did not limit its holding to only activities that would “ordinarily be considered recreational or social in nature . . . .” Lozano, 178 N.J. at 531. Rather, the Court referred more generally to “an activity that is otherwise unrelated to work . . . .” Id. at 532. Notably, Sager did not suffer his injury at the compelled “social activity” – the meal.  He was injured during the journey back from the meal. Based on that initial compulsion, his injury was determined to have occurred during the course of employment.8 The key is whether an employer compelled the employee’s participation.

In one sense, travel to and from work is always compelled. Employers set work schedules and employees are generally expected to comply. Those who do not comply usually risk losing their jobs. But, the compulsion in Minter’s case was specific and exceptional. Minter had already called out for the day. Thus, if he could establish that his employer compelled his non-work- related activity – the journey to work in a co-worker’s vehicle on a day he had already announced he would not.

“When an employer directly commands an employee to engage in an activity, it is axiomatic that the employee has been compelled.” Lozano, 178 N.J. at 534. According to Minter, Mattson told him that Beggs said that he had to come in during the snowstorm. Even if Beggs did not give a direct order to Minter to come in, Minter had an objectively reasonable belief that his appearance was compelled. Beggs and Mattson “directly solicit[ed]” Minter’s travel to work in the snow on a day he had already called out. See ibid. Beggs and Mattson testified that Minter was asked, not expressly ordered, to come in. Mattson testified that Beggs “asked me if I could give [Minter] a ride to work.” And Beggs testified that he “asked . . . Mr. Minter . . . if he can come in if [Mattson] picked him up. And he said yes.” After Beggs secured Mattson’s commuted together daily. However, the Ridesharing Act did not include the definition of “carpool” in Title 34, although it did include the definition of “ridesharing.” See L. 1981, c. 413, § 6. As the parties did not raise the ridesharing provision, we simply note it without deciding whether it would serve as an alternative basis for finding coverage under the Compensation Act.  Beggs testified that he called Minter again and said, “‘[Mattson]’s going to pick you up. And he said okay.'”

Despite his supervisor’s testimony that Minter may have had a choice in the matter, the record evidence establishes Minter had an objectively reasonable belief that he was required to accept Mattson’s ride and show up for work in the snowstorm. Minter’s refusal would have “expose[d] [him] to the risk of . . . loss of employment.” Ibid. “[C]onsidering the imbalance of power between the employer and employee, we cannot ignore the reality that indirect pressure on an employee can be as powerful as an explicit order.” Ibid.; see also Sager, 182 N.J. at 166-67 (noting employees’ sense of obligation to comply with supervisor’s requests).

It is ultimately not material whether Beggs directed or “asked” Minter to come into work. Nor does it matter that there was no written policy that he would be fired if he did not. Minter understood that he was an essential employee, like all other kitchen staff members. He was so informed when he was hired. Beggs and Lear confirmed that in their depositions. The Village residents had to be fed. Beggs stated that “all hands [were to be] on deck in emergencies” like the snowstorm the day of the accident. Once Beggs secured a ride to work for Minter, he had no justifiable excuse for refusing. Beggs admitted that if Minter refused, he would have referred the matter to Human Resources. Minter said he believed he would have been fired if he refused. It was a reasonable belief.

In sum, Minter was injured in the course of his employment, despite the fact that he was not yet at his employer’s premises, because his employer had compelled his travel to work with a co- worker on a day he had already informed his employer he was not going to come in.