Restocking Policy Stings Pest Control Owner with Workers' Comp Liability


Trenton, NJ ( -- A company can open itself up to worker’s compensation liability when it requires an off-premises worker to drive to the office in the morning before going to a jobsite.

That’s what happened in Keim v. Above All Termite & Pest Control, No. A-3660-20 (Super. Ct. N.J., App. Div. 10/12/22, unpublished), where a pest control applicator was in a car wreck while driving in a company-provided vehicle from his home to the office in the morning to pick up supplies.

Driving to the shop that morning was the employee’s unusual routine. The company’s owner didn’t want employees keeping large quantities of chemicals and supplies in their vehicles overnight because they would be exposed to heat and cold. He also wanted to limit the risk of someone stealing the items from workers’ vehicles. So, he preferred that they restock each morning before going to the residences and businesses where they would apply the chemicals.

On the way to the office that morning, the employee was in a serious car accident. He hit his head on the inside of the vehicle and lost consciousness. He reportedly injured his left flank and ribs. A couple months later, as a result of the accident, he was diagnosed with subdural hematomas requiring surgery.

A worker’s compensation judge ruled that the employee was not entitled to benefits. The employee just driving to work when the accident occurred, the WCJ reasoned. Thus, he was not acting within the course and scope of his employment.

Addressing the worker’s appeal of the WCJ’s decision, the court explained that to obtain benefits, an employee’s injury must occur in the course of employment. Prior to 1979, New Jersey espoused the "going and coming rule," which excluded workers' compensation benefits for accidental injuries that occurred during routine travel to or from the employee's place of work.

The court noted that the replacement for the “going and coming rule” is as follows:

The Premises Rule
General rule Exceptions
An injury to an employee occurs in the course of employment if the injury takes place on the employer's premises.
  1. The special mission exception
  2. The authorized operation of a business vehicle exception

The “special mission” exception allows compensation when the employee is required to be away from the conventional place of employment for business purposes, and travel is an indispensable part of the performance of the employee's job duties.

Here, the court held, the “authorized operation of a business vehicle exception” applied. Under that exception, the injury occurs in the course of employment if the employee is engaging in the authorized operation of a business vehicle on business authorized by the employer.

Here, the pest control applicator was operating an authorized business vehicle on business authorized by the company in accordance with owner’s directive that employees only carry a limited quantity of supplies in their assigned vehicles. The employee was following his boss’ instructions to restock in the morning and was injured on his way to the shop to do exactly that. “These facts are materially different from cases where an employee is merely commuting to work or engaging in personal activities unrelated to work,” the court wrote.

Accordingly, the court held that the worker’s injuries fell within the authorized operation of a business vehicle exception and were compensable under the Act.

The court reversed and remanded for further proceedings.

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