(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
(A-49-97)
Argued December 2, 1997 -- Decided February 3, 1998
PER CURIAM
In this appeal, the Supreme Court addresses the compensability under the Workers' Compensation
Act for injuries suffered by an employee in preparation for her commute to work.
Trooper Patricia Perry was injured while trying to dig her State car out of her driveway. She
maintained that, prior to her injury, she had attempted to back the vehicle out of her driveway, but could not
get to the street because of the previous night's snowfall. Because of her work commitments that morning,
she asserted that she had no alternative but to manually shovel the snow from the driveway, in the course of
which she sustained injury.
The Division of Workers' Compensation awarded benefits to Trooper Perry. In a reported decision,
the Appellate Division found that, although Perry was required to use an employer-authorized vehicle, she
was engaged in her daily commute to work and was not directed by her employer to report to a distant job
site. The panel, therefore, concluded that Perry was not entitled to Workers' Compensation benefits and
remanded the matter to the Division for dismissal of Perry's petition.
The Supreme Court granted Perry's petition for certification. While the matter was pending before
the Supreme Court, the State moved for and was granted leave to supplement the record with the
certification of the State Claims Manager and with Circular Letter No. 93-04-GSA, in order to set forth the
policy of the State concerning Workers' Compensation coverage for employees assigned State vehicles and
the rationale for that policy. That policy essentially provided for Workers' Compensation coverage for State
employees who are assigned State vehicles and who are injured during their daily commute to and from
work. That policy notwithstanding, the State took the position that Trooper Perry would not be entitled to
benefits because she was not in her State car and had not yet begun her commute to work when the injury
occurred.
HELD: Absent the new evidence presented by the State, Trooper Perry's injuries are not compensable
under the Workers' Compensation Act, as they were not sustained while conducting business or while on a
“special mission” for her employer.
1. If Circular No. 93-04-GSA were interpreted to authorize the payment of benefits not statutorily
prescribed by the Act, the Division of Workers' Compensation may not have jurisdiction over a proceeding
seeking review of the denial of a claim for benefits based solely on the Circular. (p. 5)
2. Because this proceeding commenced in the Division of Workers' Compensation, without objection by the
State, it is appropriate and consistent with the interests of justice to remand the matter to the Division to
resolve Trooper Perry's claim for benefits on the basis of the policy reflected in the Circular. (p. 6)
Judgment of the Appellate Division is AFFIRMED and the matter is REMANDED for resolution of
the claim in light of the policy reflected by State Circular No. 93-04-GSA.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN and COLEMAN join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
49 September Term 1997
PATRICIA PERRY,
Petitioner-Appellant,
v.
STATE OF NEW JERSEY, DEPARTMENT OF
LAW AND PUBLIC SAFETY, DIVISION OF
STATE POLICE,
Respondent-Respondent.
Argued December 2, 1997 -- Decided February 3, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
296 N.J. Super. 158 (1996).
Grace A. Leslie argued the cause for
appellant (Lawrence, Leslie & Kain,
attorneys).
Mary C. Jacobson, Assistant Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General of New Jersey,
attorney; Ms. Jacobson and Michael D.
O'Brien, Deputy Attorney General, on the
briefs).
PER CURIAM
In a reported opinion, 296 N.J. Super. 158 (1996), the Appellate Division reversed the judgment of the Division of Workers' Compensation that awarded benefits to petitioner, Trooper Patricia Perry, and remanded the matter to the Division for dismissal of the petition. Based on the record presented to
the Appellate Division, we agree with its disposition and are
substantially in accord with the reasoning on which its
disposition was premised:
Although petitioner was required to use
an employer-authorized vehicle, she was
engaged in her daily commute to work and was
not directed by her employer to report to a
distant job site. Nor was she . . .
conducting business authorized by her
employer at the time of her injury. The
record simply will not support a finding of
“special-mission.” Therefore, given the
legislative intent to amend the “going and
coming” rule to allow compensation only in
certain specified instances, we conclude
petitioner is not entitled to benefits and
direct the dismissal of the claim petition.
While Trooper Perry's appeal was pending before this Court,
the State moved for and was granted leave to supplement the
record with the certification of William J. Brennan, State Claims
Manager, and Circular Letter No. 93-04-GSA, in order to set forth
the policy of the State concerning Workers' Compensation coverage
for employees assigned State vehicles and the rationale for that
policy. The State also was granted leave to file a supplemental
brief. The following excerpt from the Brennan certification
summarizes the relevant State policy and its underlying
rationale:
10. While the State of New Jersey
recognizes that the use of a State vehicle by
a State employee to travel between his
residence and his official work station
constitutes a benefit to the State employee,
that benefit is considered as incidental to
the benefit to the State employer, which
requires that the State employee be able to
travel to any part of the State at a moment's
notice.
11. Because a State employee's use of a
State vehicle, even to travel between the
State employee's residence and his official
work station, is viewed by the State as being
primarily for the benefit of the employer,
namely the State of New Jersey, the State has
always considered State employees who are
injured while driving State vehicles between
their residences and their official work
stations to be on “official state business”
and therefore covered for [W]orker's [sic]
[C]ompensation benefits.
12. Historically, the State of New
Jersey has provided and continues to provide,
[W]orker's [sic] [C]ompensation benefits to
all State employees who are authorized to use
State vehicles and who are injured while
operating such vehicles to travel between
their residences and their official work
stations.
13. The State of New Jersey has no
obligation to insure its motor vehicles, Ross
v. Transport of New Jersey,
114 N.J. 132
(1989), and does not voluntarily insure them.
In return for State employees giving up the
flexibility of using their own vehicles and
the insurance coverage they have on those
vehicles, which includes PIP, the State
determined to provide [W]orkers[']
[C]ompensation benefits, including medical
benefits, to employees who are injured when
driving State cars on official business,
including commuting. The State similarly
provides defense and indemnification to State
employees involved in accidents while driving
State vehicles on authorized business,
including commutation. These coverages are
provided out of a sense of fairness and, as
to the tort concerns, because refusing
coverage would require State employees
driving State cars to look to their personal
automobile insurance for tort coverage,
possibly creating cost problems for employees
and jeopardizing their personal insurance
coverage.
In its supplemental brief, the State acknowledges that it
argued before both the Division of Workers' Compensation and the
Appellate Division that Trooper Perry's injuries should not be
compensable because they were incurred during commutation. The
State now concedes, however, on the basis of Circular No. 93-04-GSA, that the State typically “would provide [W]orkers[']
[C]ompensation coverage for State employees who are injured while
driving to work in State cars.” The State continues to oppose
extending benefits to Trooper Perry on the narrower ground that
when she sustained her injury she was shoveling snow in her
driveway to enable her to back her State vehicle out of the
driveway in order to commute to work. Thus, the State now
asserts that her injury is not compensable because she was not in
her State car and had not yet begun her commute to work when the
injury occurred.
Trooper Perry responds that prior to her injury she had
started the vehicle and proceeded to back out of the driveway,
but could not get to the street because of the previous night's
snowfall. Because of her work commitments that morning, she
asserts that she had no alternative but to leave her vehicle and
manually shovel the snow from the driveway, in the course of
which she sustained severe injury. She argues that a fair
reading of the State policy memorialized in Circular No. 93-04-69A, and elaborated on in the Brennan certification, demonstrates
that her injury occurred in the course of her commute to work and
therefore is compensable.
We decline to resolve the issue presented for the first time
in this Court on the basis of an expanded record. During oral
argument before us the State asserted that if Trooper Perry had
begun her commute she would have been entitled to benefits under
the so-called “authorized vehicle exception,” N.J.S.A. 34:15-36,
see Zelasco v. Refrigerated Food Exp.,
128 N.J. 329, 337-40
(1992). The State rests that argument on the State policy
reflected in Circular No. 93-04-GSA, contending that State
workers who drive State vehicles between their residences and
work stations are on official State business and therefore
covered by the Act. The State also acknowledged that it would be
plausible for a court to construe the circular as authorizing the
payment by the State of Workers' Compensation benefits under
circumstances not required by the Workers' Compensation Act, as
interpreted by judicial decisions. The State contended,
nevertheless, that it was empowered to pay Workers' Compensation
benefits to its employees even if not required to do so by the
Act.
In this unusual procedural posture, it is not necessary for
us to consider or decide whether Circular No. 93-04-GSA
authorizes the State to pay Workers' Compensation benefits not
required under the Act. We recognize that if the Circular were
interpreted to authorize the payment of benefits not statutorily
prescribed by the Act, the Division of Workers' Compensation may
not have jurisdiction over a proceeding seeking review of the
denial of a claim for benefits based solely on the Circular.
Nevertheless, because this proceeding commenced in the Division
of Workers' Compensation, without objection by the State, we deem
it appropriate and consistent with the interests of justice to
remand the matter to the Division to resolve Trooper Perry's
claim for benefits on the basis of the policy reflected in
Circular No. 93-04-GSA. As a matter of sound discretion, the
Judge of the Division of Workers' Compensation may permit the
parties to supplement the record to the extent necessary for a
full resolution of the claim petition. Jurisdiction is not
retained.
So ordered.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in this opinion.
NO. A-49 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
PATRICIA PERRY,
Petitioner-Appellant,
v.
STATE OF NEW JERSEY, DEPARTMENT OF
LAW AND PUBLIC SAFETY, DIVISION OF
STATE POLICE,
Respondent-Respondent.
DECIDED February 3, 1998
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY