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(c) 2018 Jon L Gelman, All Rights Reserved.

Thursday, August 9, 2018

A Deviation Off-Premises Bars Claim

The “Coming and Going Rule” has always been a grey area in determining compensability in the workers’ compensation arena. A bucket full of cases and statutory modifications have tried to establish clarity.

The latest ruling came this week in a case decided before the NJ Appellate Division where a truck driver was injured while taking a shower at a pit stop in Wyoming. The court held that the accident was not compensable since taking a shower was a deviation from the course of his employment.

The stakes were high in the case as David P. Kendall, Esq., who prevailed, of the office of Ann Debellis, Esq. (New Jersey Manufacturers Insurance Company)  argued the case for the employer. Robert B. White, Esq, of Garces, Grabler & LeBrocq, PC, argued the case for the injured worker. The NJ Advisory Council on Safety and Health, an attorney based claimant’s interest group, were permitted to appear as amicus curiae in support of the injured worker.

This unreported decision doesn’t create any new law since were restrictions on the “Coming and Going Rule” were enacted by  NJ legislature in 1979 in an effort to lower costs. The case does point out an emerging trend to ride the NJ wave for liberalization of employment laws. How that theme plays out in the future will require close observation. 

Kamenetti v. Sangillo & Sons , A-0394-16T3 Decided August 8, 2018*

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).


*NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.