Can I Receive Workers’ Compensation for Injuries Occurring off the Job Site?

By Barry Dratch

It is well established that an employee is entitled to workers’ compensation benefits if he or she is injured at the job site in the course of his employment.  N.J.S.A. 34:15-7 states, “To prevail in a claim for Workers’ Compensation, a petitioner must prove that his or her injury arose out of and in the course of employment.”

However, will that employee be covered if he or she is in a car accident on the way to work?  What about if the employee trips and falls in a parking lot before entering the job site?  In order to determine eligibility for workers’ compensation for injuries occurring off the job site, New Jersey Courts will examine the facts particular to each case.  Eligibility is determined by the “going and coming rule” and its exceptions.

N.J.S.A. 34:15-36 states (in pertinent part):

“Employment shall be deemed to commence when an employee arrives at employer’s place of employment to report for work and shall terminate when the employee leaves the place of employment… provided, however, that when the employee is required by the employer to be away from employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment… of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by employer.”

The “going and coming” rule is intended to preclude the award of workers’ compensation benefits to accidental injuries sustained during routine travel to and from employee’s regular place of work, based on the principal that routine travel does not  yield a special benefit to employer nor does it expose the employee to risks peculiar to the industry.

While the “going and coming” rule precludes many injuries that occur off the jobsite from eligibility, there are exceptions to this rule.  These rules were spelled out by the New Jersey Supreme Court in Zelasko v. Refrigerated Food Express, 128 N.J. 336 (1992).  The two exceptions to the “going and coming rule are the special mission except and the travel time exception.

1)      The “special mission” exception allows compensation at any time  for employees:

a)      required to be away from the conventional place of employment;

b)      if actually engaged in direct performance of “employment duties”

2)  The travel time exception  allows portal to portal coverage for employees

a)      paid for travel time to and from distant job site or

b)      using and employer-authorized vehicle for travel time to and from a distant job site.

Another instance where an injury which occurs off of the job site could be compensable are the parking lot cases.  If an injury occurs in a parking lot before an employee checks into work or after he leaves work, compensability will depend on the employers control over where employees park.  If an employee can park wherever he wants, then compensability will not begin until the employee actually enters the job site.  However, if an employer can control where an employee parks, the employee is covered from the point of arrival at that location.  For example, if the employer owns and controls a parking lot, and instructs its employees to park in the back of the lot so that customers can park closer, injuries which occur in that parking lot would be compensable.  In that scenario the employer owned the lot and instructed Petitioner where to park for the convenience of its customers, a benefit to the employer.

As discussed, it is fact specific as to whether an employee injured before entering the job site would be eligible for workers compensation benefits.  If the insurance carrier denies your claim for benefits based on the “going and coming” rule, you should consult an attorney to determine if the facts of your case meet one of the exceptions to the rule.

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