On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2009-2187.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Baxter.
Petitioner Coveia Hope appeals from the August 18, 2009 order of the Division of Workers' Compensation dismissing her claim petition against her employer, Eberle & BCI Services, LLC, (Eberle). The sole issue on appeal is whether the injuries sustained by Hope, when she fell in the parking lot at Fort DiX after she had signed out of work for the day, arose out of and in the course of petitioner's employment. The judge of compensation determined the injuries were not compensable, and we agree.
The relevant facts were stipulated and are not in dispute. Eberle provides food service at Fort Dix, pursuant to a contract with the United States government. Hope was employed by Eberle as a cook. On December 21, 2008, Hope signed out of work, exited the building, Building 5904, and crossed the street before entering the parking lot. In the parking lot, Hope slipped on a patch of ice and fell, striking her head.
The parking lot in question is owned and maintained by the United States government. It is used by military personnel and by any civilians with clearance to be on the base, such as the employees of Eberle. Eberle did not exercise control over the parking lot and had no right to control it. Eberle was not assigned any particular portion of the parking lot for its employees, and it did not dictate to its employees where they should park. The employees were permitted to park anywhere in the lot they selected, and they occupied their spaces on a first-come, first-serve basis.
The judge of compensation determined that Hope's injuries were not compensable. In reaching that decision, the judge found that "the employer did not control the employee during the parking process." After thoughtfully considering five relevant cases brought to his attention by the parties, see, Brower v. ICT Group, 164 N.J. 367 (2000); Ramos v. M&F Fashions, Inc., 154 N.J. 583 (1998); Novis v. Rosenbluth Travel, 138 N.J. 92 (1994); Livingstone v. Abraham & Straus, Inc., 111 N.J. 89 (1988); Ehrlich v. Strawbridge & Clothier, 260 N.J. Super. 89 (App. Div. 1992), the judge ultimately concluded that this case is controlled by Novis.
Novis involved an employee who sustained injuries upon arrival at work when she fell while walking across the sidewalk leading to the entrance of the office building in which her employer's branch office was located. The employee had walked from an adjacent parking lot that accommodated the building's tenants, including employees of the branch office. The Novis Court held that where the employer exercised no control over any portion of the parking lot and where it simply shared the lot with other tenants, employment did not commence before the employee fell on the sidewalk to the building. Novis, supra, 138 N.J. at 96. The Court explained that the facts of Novis "differ[ed] significantly" from those that controlled the outcome of Livingstone. Ibid.
In Livingstone, the employee was injured in the parking lot at the Monmouth Mall on her way to work at Abraham & Straus. Livingstone, supra, 111 N.J. at 90. The injuries were held to be compensable because the Court concluded that the accident was not the sort of incident the 1979 amendment to the Workers' Compensation Act sought to render non-compensable. Id. at 106. There, Abraham & Straus had directed its employees to utilize a designated area of the mall parking lot and had thereby appropriated that area for the exclusive use of its employees. Id. at 95. In the Court's view, the "employees' use [of the portion of the lot designated by Abraham & Straus] was effectively equivalent to an employer-owned lot." Novis, supra, 138 N.J. at 104-05 (quoting Livingstone, supra, 110 N.J. at 104-05).
Novis and Livingstone both involved employees who were injured as they arrived at work. The case on appeal involves an employee who was injured after she signed out at the end of the work shift, but before she reached her car. That factual difference does not dictate a different outcome because, as the Court expressly stated in Brower, supra, 164 N.J. at 372, "[t]he fact that petitioner had punched out on the clock does not preclude compensability because the situs of the accident and the employer's control of that location are the dispositive factors." Those dispositive factors favor non-compensability. The situs is across the street from the building where Hope worked, in a parking lot used in common by army personnel and visitors on the base. The site is controlled and maintained by the United States government.
The 1979 amendments to the Workers' Compensation Act abrogated the "going and coming" rule that had existed in the workers' compensation jurisprudence since the inception of the Act. Kristiansen v. Morgan, 153 N.J. 298, 316 (1998). By the amendments, the Legislature established the premises rule and provided, in pertinent part, that:
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. [N.J.S.A. 34:15-36.]
"The premises rule 'limits recovery to injuries which occur on the employer's premises . . . by confining the term 'course of employment' to the physical limits to the employer's premises.'" Kristiansen, supra, 153 N.J. at 316. As the Court has noted, "[t]he Legislature used the phrase 'excluding areas not under the control of the employer' in its definition of employment because it intended to include areas controlled by the employer within the definition. That ...