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Cheryl Hersh v. County of Morris

July 24, 2012

CHERYL HERSH, PETITIONER-RESPONDENT,
v.
COUNTY OF MORRIS, RESPONDENT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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