January 03, 2024

New Jersey Workers’ Compensation Legal Update - Keim v. Above All Termite & Pest Control

New Jersey worker’s compensation law has a new ruling that affects both employers and petitioners alike.  Under the NJ Workers’ Compensation Act, the general rule is that when an employee is commuting to and from work, any injuries that occur during that time are not compensable.  But that rule has exceptions.  One of those exceptions is the authorized vehicle rule.

The authorized vehicle rule says that when an employer authorizes the operation of a vehicle for the employee and the authorized operation is on business authorized by the employer, then the employee is not commuting.  N.J. S.A. 34:15-36.  To put it simply, an employee using an authorized vehicle is within the course of employment and the authorized vehicle rule puts the responsibility back on the employer if there’s an injury.  That rule applies when the employee is using a vehicle provided by the employer and the injury occurs while the employee is using the vehicle for business purposes.

Enter Henry Keim, a pest control technician for Above All Termite & Pest Control.  Above All Termite lends its employees authorized vehicles to drive directly to sites for the workday.  Technicians wake up in the morning and are ready to work.  But what happens when a technician runs out of chemical sprayer?  They pick up new equipment on the fly.

When a technician needs pest control materials, they go to an Above All Termite shop and restock.  On this morning, Keim was low on materials, and as he was driving to the Above All Termite shop, he was involved in a car accident.  The car accident left him with injuries, which resulted in balance issues and a surgery for bilateral subdural hematomas.

Was Keim commuting to his job or is this an extension of the authorized vehicle rule?  It’s a simple question, but the ramifications can mean countless dollars for employers.  The Judge of Compensation ruled Keim was commuting and dismissed the claim petition.  On appeal, the Appellate Division disagreed and reinstated the petition after applying the authorized vehicle rule.  The Supreme Court of New Jersey affirmed.  Keim v. Above All Termite & Pest Control (A-30-22) (087603) (November 21, 2023).

The Supreme Court reasoned that Above All Termite provided the vehicle to Keim, which means it was authorized.  Id. at 2.  The Supreme Court then found that since the company authorized Keim to use the vehicle to replenish supplies, he was using the vehicle for business authorized by the employer.  Id.  Taken together, these two circumstances mean that Keim was in the course of employment under the authorized vehicle rule, and the car accident is compensable under worker’s compensation law.  The Court noted that the business authorized by the employer doesn’t mean the employer has to direct or assign the task to the employee.  Id. at 19.  This is an important distinction because Above All Termite allows technicians to replenish supplies themselves rather than directing them.

We will continue to monitor this rule as it influences liability for employers for NJ workers’ compensation litigation.  If you have any questions, please feel free to contact Nick Brago, Esq. at nbrago@c-wlaw.com or (856) 761-3800.


The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C. or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.