                        NOT FOR PUBLICATION WITHOUT THE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.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4574-15T2

LUIS FONSECA,

        Petitioner-Appellant/
        Cross-Respondent,

v.

INTERTEK,

     Respondent-Respondent.
_________________________________

ALLSTATE INSURANCE CO., A/S/O
LUIS FONSECA,

        Petitioner-Respondent/
        Cross-Appellant,

v.

INTERTEK,

        Respondent.


              Submitted May 17, 2017 – Decided June 20, 2017

              Before Judges Carroll and Farrington.

              On appeal from the New Jersey Department of
              Labor and Workforce Development, Division of
              Workers' Compensation, Claim Petition Nos.
              2011-32820 and 2013-26473.
            Kuchinsky and Rotunno, P.C., attorneys for
            appellant/cross-respondent  (Anthony    M.
            Rotunno, on the brief).

            Biancamano   &   DiStefano,  attorneys   for
            respondent Intertek (James G. Serritella, on
            the brief).

            McDermott   &  McGee,   LLP,  attorneys   for
            respondent/cross-appellant Allstate Insurance
            Co. (Antony J. Verardi, on the brief).

PER CURIAM

     Petitioner Luis Fonseca appeals the May 16, 2016 order of the

Division of Workers' Compensation that dismissed with prejudice

his claim petition against respondent Intertek, his employer.       A

companion order dismissed a related claim petition filed by cross-

appellant, Allstate Insurance Company, which sought to recover

personal injury protection benefits it paid to Fonseca under an

automobile insurance policy.     The Judge of Compensation (JWC)

determined that Fonseca's injuries did not arise out of or in the

course of his employment, and hence were not compensable.          We

affirm.

     Fonseca was employed by Intertek as a petroleum inspector.

He was injured in an automobile accident that occurred on September

24, 2011.    He alleged that he took petroleum samples from a job

site, Hess Port Reading Terminal (Hess), to Intertek's laboratory

for analysis, and that the accident occurred while he was returning

to Hess to complete his job duties.       Intertek disagreed, and

                                 2                          A-4574-15T2
instead maintained that Fonseca had concluded his work and was

leaving for the night and not returning to Hess as he had no reason

to do so.

       The case was tried, as to compensability only, over four days

between July 13, 2015 and February 8, 2016.                    Fonseca, his former

co-worker Juan Garabito, and Edward Lauer, a dispatcher employed

by Intertek, testified at the hearing. In a thorough oral opinion,

the JWC found Fonseca's testimony that he was working at the time

of    the    motor    vehicle    accident       was    not   credible    because     of

inconsistencies in his testimony at the hearing and in his pre-

hearing explanation of the accident.                  In reviewing the testimony,

the    JWC        identified     certain        instances      when     Fonseca    was

"argumentative and defensive" and "evasive."                     The JWC likewise

"[did]      not    believe     Garabito's       testimony"     and    found   it   was

contradicted by information contained in a Movement Summary Report

introduced at trial that tracked Fonseca's activities.

       The JWC found Lauer's testimony "more credible."                       The JWC

accepted     Lauer's     version    of   events,       which   she    summarized     as

follows:

                   I found [Lauer] to be a credible witness;
              straightforward   and    businesslike.      He
              testified   that    before    [Fonseca]   left
              [Intertek's] premises after dropping off the
              samples, he did not tell him that he was
              returning to Hess. He said that if [Fonseca]
              was returning to Hess, he would have told him.

                                            3                                 A-4574-15T2
            After    leaving    [Intertek's]     premises,
            [Fonseca] called Lauer to tell him he was
            involved in an accident around the corner from
            [Intertek's] premises and Lauer picked him up
            and brought him back to [Intertek's] premises
            where he was picked up and taken home by a
            friend.   Lauer testified that even when he
            picked up [Fonseca] at the scene, he did not
            tell him that he was on his way back to Hess,
            or that any further work had to be done that
            night. Lauer further testified that if there
            was anything that had to be done to complete
            the work that night, that he would have been
            contacted by someone from Hess. He said he
            was not contacted. He said there was no need
            for anyone to go back to Hess until the
            following morning at 8 a.m. when the barge was
            closed.

     Based on the facts as she found them, the JWC determined that

petitioner's accident was not compensable because Fonseca's work

had concluded for the night and he was not returning to Hess.     The

JWC also dismissed Allstate's claim petition "as there [was] no

reimbursement due."    Fonseca's appeal and Allstate's cross-appeal

followed.

     Our standard of review is well settled.    As delineated by our

Supreme Court:

            In workers' compensation cases, the scope of
            appellate review is limited to "whether the
            findings made could reasonably have been
            reached on sufficient credible evidence
            present in the record, considering the proofs
            as a whole, with due regard to the opportunity
            of the one who heard the witnesses to judge
            of their credibility."



                                  4                          A-4574-15T2
            [Lindquist v. City of Jersey City Fire Dep't,
            175 N.J. 244, 262 (2003) (quoting Close v.
            Kordulak Bros., 44 N.J. 589, 599 (1965)).]

"Deference   must   be   accorded   the   factual   findings   and     legal

determinations made by the Judge of Compensation unless they are

'manifestly unsupported by or inconsistent with competent relevant

and reasonably credible evidence as to offend the interests of

justice.'"   Id. at 262-63 (quoting Perez v. Monmouth Cable Vision,

278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 104

N.J. 277 (1995)).    "[T]he judge of compensation's legal findings

are not entitled to any deference and, thus, are reviewed de novo."

Hersh v. Cty. of Morris, 217 N.J. 236, 243 (2014) (citing Williams

v. A & L Packing & Storage, 314 N.J. Super. 460, 464 (App. Div.

1998)).

     Only those employees injured in accidents "arising out of and

in the course of employment" are entitled to workers' compensation

benefits.    Ibid. (quoting N.J.S.A. 34:15-7).        N.J.S.A. 34:15-36

provides in pertinent part:

            Employment shall be deemed to commence when
            an employee arrives at the employer's place
            of employment to report for work and shall
            terminate when the employee leaves the
            employer's place of employment, excluding
            areas not under the control of the employer;
            provided, however, when the employee is
            required by the employer to be away from the
            employer's place of employment, the employee
            shall be deemed to be in the course of
            employment when the employee is engaged in the

                                    5                                A-4574-15T2
              direct performance of duties               assigned   or
              directed by the employer[.]

              [Ibid.]

       Prior to 1979, the workers' compensation law had "broad

statutory language defining compensable accidents as those arising

out of and in the course of [the] employment."                 Watson v. Nassau

Inn,    74    N.J.    155,   158   (1977).         The   workers'   compensation

jurisprudence at the time included the "going and coming rule," a

doctrine that prevented awarding workers' compensation benefits

for accidental injuries that occurred during routine travel to or

from the employee's place of work.            Ibid.      The purpose of the rule

was to separate work risks from ordinary risks unrelated to

employment.      Id. at 159.

       "However, there were many exceptions to the [going and coming]

rule,   allowing      for    countless    awards    of   workers'   compensation

benefits[.]"         Hersh, supra, 217 N.J. at 243.            "As a result, in

1979,   the    Legislature      amended    the   Workers'    Compensation    Act,

updating the definition of 'employment' [in N.J.S.A. 34:15-36] to

be more restrictive."           Id. at 244; see also Jumpp v. City of

Ventnor, 177 N.J. 470, 476-79 (2003) (tracing jurisprudential

developments leading to 1979 adoption of Section 36).

       Before us, Fonseca and Allstate (collectively, appellants)

do not challenge the JWC's credibility findings.                    Rather, they


                                          6                              A-4574-15T2
argue that the JWC failed to address the "on call" nature of

Fonseca's employment in determining the compensability of his

injuries.   We are unpersuaded.

     Appellants cite a trilogy of pre-amendment cases, Paige v.

City of Rahway, Water Department, 74 N.J. 177 (1977), Briggs v.

Am. Biltrite, 74 N.J. 185 (1977), and Sabat v. Fedders Corp., 75

N.J. 444 (1978), for the broad proposition that being "on-call"

means his injuries are compensable.         However, the 1979 amendment

intended to limit compensation to accidents occurring "when the

employee is engaged in the direct performance of duties assigned

or directed by the employer[.]"      N.J.S.A. 34:15-36.      Moreover, to

the extent that the cases relied on by appellants have continued

vitality after the 1979 amendment, Fonseca's limited testimony on

redirect examination, that when he goes home he is "on call," does

not, "without more, establish entitlement to compensation as a

result of an accident."      Sabat, supra, 75 N.J. at 451.           Rather,

compensability in the pre-amendment context generally required a

"showing of frequent and substantial disruption of the off-duty

life of an employee whose continued availability is essential to

the operational efficiency of his employer's business[.]"              Ibid.

Fonseca made no such showing here.

     Further,   we   agree    with       Intertek   that   Fonseca     never

specifically asserted the "on call" argument before the JWC.

                                     7                               A-4574-15T2
Rather, Fonseca's contention was that he was returning to the Hess

work site, rather than going home, when the accident occurred.

Generally, we "'will decline to consider questions or issues not

properly presented to the trial court when an opportunity for such

a presentation is available' unless the matter involves the trial

court's jurisdiction or is of public importance[.]"         Alloway v.

Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (quoting Nieder

v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); accord State

v. Robinson, 200 N.J. 1, 20 (2009) (reiterating the principle of

not considering an issue raised for the first time on appeal absent

an exception).   No exception applies here.

     Finally, Fonseca argues that the JWC erred in failing to

admit   the   collective   bargaining   agreement    that   purportedly

detailed the "on call" nature of his employment.       The JWC excluded

the document because it was an unsigned copy and referenced an

individual other than Fonseca and, as such, it was not properly

authenticated.

     We give substantial deference to the trial judge's discretion

on evidentiary rulings, Benevenga v. Digregorio, 325 N.J. Super.

27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), and

reverse only where the judge's ruling was "so wide of the mark

that a manifest denial of justice resulted."        State v. Carter, 91



                                  8                             A-4574-15T2
N.J. 86, 106 (1982).   Guided by this standard, we discern no abuse

of discretion that warrants reversal here.

     Affirmed.




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