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Ramos v. M & F Fashions

July 13, 1998

FELIPE RAMOS, PLAINTIFF-APPELLANT,
v.
M & F FASHIONS, INC., RESPONDENT, AND SECOND INJURY FUND, RESPONDENT-RESPONDENT.



Chief Justice Poritz and Justices O'hern, Stein, and Coleman join in Justice HANDLER's opinion. Justice Pollock has filed a separate Minority OPINION(S)ing opinion, in which Justice Garibaldi joins.

The opinion of the court was delivered by: Handler, J.

Argued March 2, 1998

On certification to the Superior Court, Appellate Division, whose opinion is reported at 302 N.J. Super. 24 (1997).

In this case, a worker suffered injuries when he fell down the shaft of a freight elevator in the building in which his employer was a fourth-floor tenant. The principal issue is whether the employee's injuries are compensable under the Workers' Compensation Act. Determination of that issue turns on whether the accident occurred on the employer's premises or whether it occurred beyond the employer's premises and, therefore, was not a compensable accident occurring in the course of employment under the premises rule of the Workers' Compensation Act.

I.

In 1984, when he was forty-two years old, Felipe Ramos moved to New Jersey from Puerto Rico, where he had lived since birth. In Puerto Rico, he had worked in sundry agricultural pursuits, including cutting sugar cane and picking coffee beans. When he was eighteen year old, as he was cutting grass so he could pick coffee beans, he severely injured his left hand with a machete. Four fingers on his hand were amputated below the first joint. Despite his incapacity, he continued to work in farming.

After he moved to the continental United States, Ramos lived with his brother, sister-in-law, nieces and nephews in Newark. Ramos could not find a job immediately after relocating to New Jersey. After approximately one year, M&F Fashions (M&F), a garment manufacturer, hired Ramos to be a presser. M&F was one of two tenants located on the fourth floor of a five-story building at 50 Columbia Street in Newark. The building housed several employers, who rented portions of the building. Stairs and a freight elevator comprised the only two means of reaching M&F's fourth-floor factory.

Throughout his employment at M&F, Ramos earned $5.00 per hour and worked forty hours each week. Ramos used a steam table and lowered a press. He primarily used his left hand to perform those duties. During the workday, Ramos rode the elevator to bring fabric up from the ground floor to M&F's plant. Furthermore, Ramos used the elevator to transport coats from the factory to the street for loading. One other employee also used the elevator during the day in the course of work.

Upon arriving for work, Ramos often took the elevator to get to the fourth floor. Employees of the other fourth-floor tenant also rode the elevator for passenger use, and other M&F employees may have done the same. But, most workers and Ramos's supervisors at M&F did not ride the elevator. Because the elevator doors occasionally would remain open during use, Ramos believed that they feared for their safety.

M&F required Ramos to arrive at work by 8:00 a.m., when an owner would open the factory's door. Though his bus ride was short and he could not punch in for work until 8:00, Ramos typically arrived each workday at 7:00. His pay would have been docked if he were late. When Ramos reached the building where he worked, someone from another establishment would let him inside. Then, Ramos would go upstairs, read the newspaper, drink coffee, and smoke a cigarette. He would not socialize with other people. Other M&F employees would begin to arrive at 7:30.

Ramos's superiors were aware of his habit of arriving early. One told him that his punctuality made him the best employee.

On May 13, 1988, Ramos arrived for work at 7:00 a.m., and an employee of another company opened the building door for him. Ramos walked to the elevator, the door of which was open eighteen-inches wide. He opened the door an additional foot. When he stepped into the elevator, he fell down the shaft. He plunged between eight to ten feet and was seriously injured.

Ramos was hospitalized in University Hospital for two weeks in May and an additional four days in June, when he underwent surgery. In the surgical procedure, doctors grafted bone from Ramos's right hip onto his left wrist. Ramos's injuries included a cerebral concussion, which caused him to lose consciousness, a fractured pelvis, a spinal sprain and fracture, and the fracture and fusion of his left wrist. Ramos continues to experience sharp pain in his lower back and left hand, pain in his left wrist, arm, and hip, headaches, and impotence. He can no longer lift weights and run, as he had done once per week before the accident. Psychologically, Ramos suffers from post-traumatic stress disorder and depression. Because of the pain, Ramos has not worked or applied for jobs since the accident.

Ramos filed an action against the landlord. As a result, he obtained a $100,000 settlement. After paying his medical bills and attorney's fees, he retained approximately $31,000.

Ramos filed a Worker's Compensation claim. M&F went out of business shortly after the accident; accordingly, M&F did not defend against Ramos's claim. Nonetheless, the Second Injury Fund (SIF) has opposed Ramos's application for worker's compensation benefits. In this case, hearings occurred on eight days between November 9, 1994, and September 13, 1995.

Ramos testified as a witness. In addition, Ramos elicited the testimony of Doctors I. Ahmad and Samuel L. Pollock, both of whom diagnosed him in December 1990. They testified that Ramos is permanently totally disabled. Two SIF expert witnesses, Doctors Jack G. Siegel and David J. Flicker, expressed that Ramos had a twelve-and-one-half-percent permanent partial orthopedic disability and ten-percent permanent partial neuropsychiatric disability, respectively.

On September 13, 1995, the compensation court concluded that Ramos's injuries were compensable. The court determined that the accident occurred in the course of employment because, in part, Ramos was injured on an elevator used by M&F for business purposes. The court also held that the mishap took place in the course of employment though work was not scheduled to begin until one hour after the accident. The court found credible Ramos's explanation for his early arrivals and concluded that Ramos was, indeed, reporting for work when he was injured. The court determined that Ramos was permanently totally disabled. It ruled that the accident caused two-thirds of the total disability. Thus, the court apportioned two-thirds of the fault to M&F and one-third to the SIF.

The Appellate Division reversed. 302 N.J. Super. 24 (1997). The court held that Ramos was not injured in the course of employment. Id. at 34. The court noted that, under the going and coming rule, Ramos's injuries would be compensable only if they occurred in an area under the employer's control. Id. at 30-31. According to the court, M&F did not direct Ramos to use the elevator, and Ramos used the elevator as a matter of choice. Id. at 31. M&F's use of the elevator does not equate with its control, and the elevator was a common area that many tenants used. Id. at 32-33.

The appellate court also found that Ramos's injuries were not compensable because the accident occurred an hour before the scheduled commencement of work. Id. at 34. The court recognized that employment does not begin until an employee arrives at an employer's place of business for work. Ibid. The court determined that Ramos did not arrive for work; rather, he appeared at the employer's building early in order to drink coffee, read a newspaper, and smoke a cigarette. Ibid.

Because the Appellate Division concluded that Ramos's injuries were not compensable, the court did not determine whether Ramos's disability is permanent and total.

This Court granted Ramos's petition for certification. 151 N.J. 468 (1997).

II.

The initial, sharp dispute in this case is over whether the accident transpired on M&F's premises. The SIF contends that Ramos injured himself in a common area that the employer did not control and, thus, the injury is not compensable. On the other hand, Ramos asserts that common areas, such as an elevator, in an employer's building should be deemed part of the employer's premises. In the alternative, Ramos argues that M&F controlled the elevator because it directed him and another employee to ride the freight elevator to transport clothing and materials.

The premises rule distinguishes between an accident that occurred on the employer's premises and one that did not. N.J.S.A. 34:15-36. That rule, with two exceptions inapplicable in this case, excludes from compensation accidental injuries that occur beyond the employer's premises. The rule states:

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, ...


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