NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 8, 2012
On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Case No. 2010-19898.
Thomas A. Harley argued the cause for appellant (Wilson & Wilson, attorneys; Mr. Harley, on the brief).
Alison Morrissey argued the cause for respondent (Cipriani & Werner, P.C., attorneys; Ms. Morrissey, on the brief).
Before Sapp-Peterson and Nugent, Judges.
In this workers' compensation case, petitioner Valerie Pyles appeals from an order that dismissed with prejudice her claim petition against respondent, The Mentor Network, her employer. Her claim arose when she slipped and fell on the floor of an elevator she intended to take to respondent's office on the third floor of a four-story office building. The Judge of Compensation (JOC) determined that petitioner's injuries did not arise out of or in the course of her employment. We affirm.
The facts are undisputed. Petitioner, a therapist, was employed by respondent, with whom she had worked for five years. She worked in respondent's Somerset office, in one of several offices located on the third floor of a four-story office building. Petitioner would typically take one of the building's two passenger elevators from the lobby to the third floor to go to the office. On the morning of her accident, she drove to the office building, parked, and walked into the building's main lobby where she stepped into one of the elevators. As she entered the elevator, "one foot in and one foot out, " her forward foot slid further into the elevator, causing her to spin around and fall, resulting in injuries to her neck, left wrist, and lower back.
Respondent, one of fourteen or fifteen companies in the building, had approximately 140 employees working at that location, and leased approximately eighteen percent of the building's rentable space. Multiple parking lots were located in front of, behind, and beside the building. With the exception of five or six parking spaces reserved for respondent's leadership team, there was no designated area for employees of respondent or any other company. Respondent did not maintain any of the parking lots; these were the landlord's responsibility according to the lease. Nor did respondent ever suggest to any of its employees where they should park, how they should enter the building, or how they should go to the third floor.
The building's occupants enter and leave primarily through two main doorways, and go to the upper floors mostly by using the two passenger elevators. According to respondent's lease, the landlord is responsible for providing and maintaining the elevators. Respondent does, however, pay as additional rent a proportionate share of operational expenses, which are defined in the lease as "those expenses paid or incurred by the Landlord for maintaining, operating and repairing the [b]uilding and [p]roperty . . . ." The operational expenses specifically include "elevator insurance."
Following petitioner's accident, she filed a claim petition to which respondent filed an answer, denying that petitioner's accident was compensable. The parties' disagreed about whether petitioner had "commenced employment" when she fell. The relevant workers' compensation statute, N.J.S.A. 34:15-36, 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, excluding areas not under the control of the employer[.]
Petitioner contended that the elevator was under respondent's control; respondent disagreed. The parties did agree, however, to bifurcate the trial. During the compensability phase of the trial, the parties established the facts set forth above. Based on those facts, the JOC determined that petitioner's accident was not compensable because she had not yet arrived at respondent's place of work when she slipped and fell in the elevator, the elevator ...