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Cheryl Hersh v. County of Morris


July 24, 2012


On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2010-12636.

Per curiam.


Argued October 4, 2011

Before Judges Simonelli and Hayden.

Appellant County of Morris (County) appeals from the November 1, 2010 order of the New Jersey Division of Workers' Compensation, awarding benefits to petitioner Cheryl Hersh pursuant to N.J.S.A. 34:15-1 to -142. The Judge of Compensation found that petitioner's accident occurred during the course of her employment because it happened after she had arrived at her employer-controlled parking lot. After considering the arguments of the parties, the record and the applicable legal principles, we affirm.

The facts in this case are not in dispute. Petitioner has been employed by the County since September 2002. During her first two years of employment, petitioner paid to park at a private lot on Schuyler Place, which is located behind her workplace at the Administration Building. Then, the County assigned her free parking at a private garage on Cattano Avenue, located about two blocks from the Administration Building. The County, which paid for sixty-five spots for its employees in the Cattano garage, gave petitioner a scan card so she could enter the garage and instructed her to park on the third level, but did not assign a particular parking space to her. Although most County employees who worked at the Administration Building were assigned free parking in the County-owned garage adjacent to that building, parking spots were allocated on the basis of seniority, and petitioner was not senior enough to obtain one in that garage.

On January 29, 2010, ten minutes before she was due to report to work, petitioner parked her car on the third level of the Cattano garage, exited onto Cattano Avenue, and proceeded one block to Washington Street, which she had to cross to get to the Court Street entrance to the Administration Building. This was the most direct route from the Cattano garage to the Administration Building. As she was crossing Washington Street, petitioner was hit by a car and severely injured. In May 2010, she applied for workers' compensation benefits, including temporary disability and medical treatment. The County denied the accident arose out of petitioner's employment and claimed she was not entitled to any benefits.

At the hearing to determine her eligibility for benefits, petitioner argued that due to its utilization for employee parking by the County, the Cattano garage should be considered part of the employer's premises for workers' compensation purposes. Thus, she contended, her injuries were compensable because, once she had parked her car in the garage, she had arrived at her employer's premises and was in the course of employment when she was injured.

The County argued that the accident was not covered under the Act because the Cattano garage was not adjacent to the work place and the County neither owned nor operated the facility. Even if the garage was part of the employer's premises, the County submitted, once petitioner exited onto the street where the employer exercised no control, she was outside the sphere of employment and therefore the accident was not compensable.

In determining that the accident was compensable, the judge reasoned that petitioner had entered the realm of her employer's control when she parked in the Cattano garage and thus had effectively arrived at the employer's premises. He found that the fact that the County did not own or maintain the garage did not place the petitioner's injuries outside the statute's reach, because the employer had paid for and designated an area for its employees' use, rendering the garage equivalent to one owned by the County and under its control.

The judge noted that, because the employer assigned parking two blocks away from the workplace, petitioner had to cross Washington Street, a hazard she did not encounter when she parked in the private lot on Schuyler Place before the County provided free parking in the Cattano garage. Instead, the judge noted, the County chose a parking location that required petitioner to cross a busy thoroughfare, and petitioner consequently lost the ability to decide where she wanted to park and assess the risks herself.

The judge also rejected the County's contention that petitioner was no longer in the course of her employment when she entered the public street because she had arrived on the employer's premises and was proceeding directly to work without diversion. In his opinion, it would be unreasonable to find that her injuries were not compensable, as they would be compensable if sustained a few minutes earlier while she was in the Cattano garage.

The County appeals, contesting both aspects of the judge's rulings: that the garage constituted part of the employer's premises, and that while on the street, petitioner remained under her employer's control, rendering her injuries compensable.

Our standard of review is well settled. We are bound by the judge of compensation's findings of fact that are supported by substantial credible evidence in the record. Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We must give due regard to the compensation judge's expertise when that is a factor. Ibid. However, we review a judge of compensation's legal determinations de novo. Williams v. A & L Packing and Storage, 314 N.J. Super. 460, 464 (App. Div. 1998).

The Workers' Compensation Act is "'humane social legislation designed to place the cost of work-connected injury on the employer who may readily provide for it as an operating expense.'" Livingstone v. Abraham and Straus, Inc., 111 N.J. 89, 94-95 (1988) (quoting Hornyak v. The Great Atl. & Pac. Tea Co., 63 N.J. 99, 101 (1973)). The Act represents a bargain between employers and employees because it places the cost of personal injuries arising out of and in the course of employment, regardless of the employer's negligence, on the employer, but the employee surrenders his right to pursue other remedies that could yield larger recoveries. N.J.S.A. 34:15-7; Basil v. Wolf, 193 N.J. 38, 53-54 (2007); Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985); Bradley v. State of N.J., 344 N.J. Super. 568, 573 (App. Div. 2001). Because it is socially beneficial legislation, the Act must be interpreted liberally and inclusively. Fitzgerald v. Coddington Stables, 186 N.J. 21, 31 (2006); Sager, supra, 182 N.J. at 169. The only burden of proof on the employee, aside from proving damages, is to make a factual showing that the injury arose out of and occurred during the course of employment. Bradley, supra, 344 N.J. Super. at 573.

The outcome of this case is controlled by the principles regarding the Act's coverage of parking lot injuries propounded by our Supreme Court in Livingstone, supra, 111 N.J. at 102. There, the Court discussed the definition of employment contained in the 1979 amendments to the Act, which provided:

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.]

After carefully analyzing case precedent, statutory language and legislative history, the Court determined that "the Legislature impliedly approved of the principle established by [pre-amendment] cases, namely, that lots owned, maintained, or used by employers for employee parking are part of the employer's premises[.]" Livingstone, supra, 111 N.J. at 102.

In Livingstone, the employer, a tenant in a large shopping mall, required its employees to park on the outer edge of the mall-owned parking lot so customers could park closer to the store. Id. at 91-92. The Court found that an employee's parking lot accident was compensable as her workday "commenced when she arrived in her car at the section of the mall lot adjacent to appellant's premises." Id. at 104. The fact that the employer did not own, maintain or have exclusive control of the parking lot did not preclude the accident from being compensable, as the Court reasoned that the term "control," in N.J.S.A. 34:15-36, must be interpreted using the "'common sense' notion that the term implies simply 'use by the employer in the conduct of his business.'" Id. at 103 (quoting Cressey v. Campus Chefs, Div. of CVI Servs. Inc., 204 N.J. Super. 337, 343 (App. Div. 1985)).

Additionally, our decision in Bradley, supra, 344 N.J. Super. at 577, a case very similar to the case at bar, is instructive. There, the employer was the State, which provided free parking for its employees in a county-owned lot. Id. at 570. An employee was injured while crossing the street from her workplace to the parking garage. Id. at 572. The employee did not have an assigned parking space but the employer designated the specific employee entrance to the lot. Id. at 571.

In holding the accident covered by the Act, we noted that "[t]he guiding principle in Livingstone, then, is that an employer provided parking lot to which an employee is assigned parking, regardless of whether the lot is employer owned, maintained, or exclusively used, is within the premises rule." Id. at 577 (citing Manole v. Carvellas, 229 N.J. Super. 138, 142 (App. Div. 1988) (employee injured in employer provided shuttle taking her from the work site to the employer designated parking lot was covered under Act)); see also Ehrlich v. Strawbridge & Clothier, 260 N.J. Super. 89, 90, 92 (App. Div. 1992) (employee injured on sidewalk after leaving work through the door designated for exclusive use of employees was covered under Act), certif. denied, 133 N.J. 435 (1993).

We find the cases cited by the County to be inapposite as in those cases the employers lacked the requisite control to trigger coverage under the Act. For example, in Novis v. Rosenbluth Travel, 138 N.J. 92 (1994), the employee traveled to a branch office located in a large multi-tenant commercial building and was injured in a parking lot open to all tenants and visitors. Id. at 93-94. The Supreme Court observed that the employer had not directed the employee to park in the lot and exercised no control over the lot, which was simply adjacent to the building and was available for common use. Id. at 96. In our view, this situation differs critically from Bradley, where the employer had paid for employees to park in a particular lot and directed them to use a certain area of the lot.

Additionally, we reject the County's reliance on Cannuscio

v. Claridge Hotel and Casino, 319 N.J. Super. 342 (App. Div. 1999) as supporting its claim that petitioner's accident on a public sidewalk is not compensable. In Cannuscio, the employee was assaulted on a public sidewalk after she left work and the employer's building. Id. at 345-46. As opposed to Livingstone and Bradley, the employee was not traversing the route between an employee-designated parking lot and the workplace but was heading home, and the employer exercised no control over the public sidewalk where the assault occurred. Id. at 353. Therefore, we find Cannuscio is significantly distinct from both Bradley and the present one. See also Serrano v. Apple Container, 236 N.J. Super. 216, 220-21 (App. Div. 1989) (injured employee was not covered after leaving an employer-designated parking lot where the employer did not exercise control over the area of the accident or the methods of egress and ingress), certif. denied, 121 N.J. 591 (1990).

Applying principles from Livingstone and Bradley to the facts of this case, we conclude that petitioner's accident was compensable under the Act. Although the Cattano garage and the sidewalk en route to the workplace were not part of the workplace in a property sense, the County exercised control over these areas by designating the third floor of the Cattano garage on Cattano Avenue for employees who did not have enough seniority for a free parking space in the adjacent, County-owned lot. Thus, in that sense, the employer's control extended the workplace premises to the Cattano garage. We reject as unrealistic the County's argument that petitioner could have chosen to pay for parking elsewhere or gone to another County-owned lot much further from her workplace. See Bradley, supra, 344 N.J. Super. at 579. Hence, we agree with the judge that when petitioner parked her car in the assigned garage, she was not coming to work, she had arrived there.



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