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Fermin v. Silva's Welding & Mechanical Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 28, 2008

ROCIO FERMIN, APPELLANT,
v.
SILVA'S WELDING & MECHANICAL CO., RESPONDENT.

On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued March 13, 2008

Before Judges Grall and Chambers.

Rocio Fermin, a former employee of Silva's Welding & Mechanical Co., appeals from a final order of the Division of Workers' Compensation dismissing her claim with prejudice. Fermin was injured when she was struck by a cyclist on the public sidewalk, which was separated from her place of employment by a parking lot. The cyclist rode through the parking lot at the same time that Fermin walked across the lot. Silva's truck was parked in the lot. Fermin took a path to the sidewalk along the side of the truck. The cyclist hit Fermin on the sidewalk behind the truck. The judge of compensation concluded that the accident was not compensable because it did not occur at a place controlled by the employer and was not the result of a hazard emanating from Fermin's employment or Silva's business.

On appeal Fermin argues that the "special hazards" doctrine applies and permits recovery that would otherwise be barred by the premises rule, N.J.S.A. 34:15-36. We affirm substantially for the reasons stated by Judge Kovalcik in his thorough and well-reasoned written opinion of July 5, 2007, and add only that the evidence would not support a finding that the position of Silva's truck in the parking lot created a "special hazard" on the public sidewalk or that the route that Fermin took was the "only route that the employee [could] traverse" to reach the sidewalk. See Cressey v. Campus Chefs, Div. of CVI Serv., Inc., 204 N.J. Super. 337, 344 (App. Div. 1985) (concluding that a petitioner who was required to traverse a hazardous route in leaving the place of employment was entitled to compensation for injury sustained because passage along that route was a "special hazard" of the employment).

Affirmed.

20080328

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