No Compensation for Worker Hurt Crossing Street From Company Lot

April 3, 2014 /

A worker hit by a car while crossing the street to her office from a garage where her employer provided parking was not injured on the job, the New Jersey Supreme Court says.

Overturning a workers’ compensation award, the justices said the garage was not under the employer’s control, despite its renting of parking spaces there for free use by its employees.

Neither did the employer dictate which path employees were to take from the garage to the office, even though crossing the street was necessary.

The decision, in Hersh v. County of Morris, seems to pull back on earlier rulings where the court took a broader view of workers’ compensation availability to employees injured in parking areas designated by their employers.

Cheryl Hersh, a senior clerk in the Morris County Board of Elections, parked each day at the Cattano Garage in Morristown, about two blocks from her office. The county agency rented 65 spaces on the garage’s third floor for use by its employees. After parking on Jan. 29, 2010, she crossed Washington Street en route to her office when a vehicle ran a red light and hit her.

Hersh petitioned for workers compensation benefits. The county asserted the accident was not covered because the garage was not adjacent to the workplace and the county neither owned nor operated it. Even if the garage were deemed the employer’s premises, Hersh was outside the sphere of employment once she stepped onto the street, the county said.

The compensation judge, Kenneth Kovalcik, ruled Hersh was at work because the accident happened after she arrived at her employer-controlled parking space. By paying the garage owner directly, rather than reimbursing employees for their parking, the county accepted responsibility for the consequences of that decision, Kovalcik said.

The judge relied on Livingstone v. Abraham & Straus, 111 N.J. 89 (1989), which held a store employee who parked in a distance area of a shopping mall parking lot based on her employer’s instructions was in the course of her employment when she was struck by a car.

On the county’s appeal in Hersh’s case, Appellate Division Judges Marie Simonelli and Margaret Hayden affirmed, also citing Livingstone.

But the Supreme Court noted that under the “going and coming” rule—in effect prior to 1979—accidental injuries during routine travel between the employee’s home and workplace were not eligible for workers compensation.

Amid court rulings providing numerous exceptions to that rule, the Legislature amended the Workers Compensation Act in 1979 to make the definition of employment more restrictive. Employers’ premises were defined as places where the employer has the right of control, whether or not exercised.

In the present case, the garage was not under employer control, since the county did not own or maintain it but merely rented a portion of it. Moreover, the public street where the accident occurred was not under employer control.

Justice Faustino Fernandez-Vina, writing for the court, said the circumstances resembled those in Novis v. Rosenbluth Travel, 138 N.J. 92 (1994), in which the Supreme Court said a worker injured in a parking lot fall was not entitled to workers compensation because the lot was shared by multiple tenants of an office building and her employer exercised no control over the setting.

Hersh’s lawyer on the appeal, Lewis Stein of Nusbaum, Stein, Goldstein, Bronstein & Kron in Succasunna, says the ruling seems inconsistent with Livingstone and with Brower v. ICT Group, 164 N.J. 367 (2000), in which a worker who fell in a stairwell at multi-tenant office building was deemed on the job.

Patrick Caulfield, chairman of the New Jersey State Bar Association’s Workers’ Compensation Section, says cases of this type are “extremely fact-sensitive.” In Hersh’s case, the court seemed to focus mainly on the fact that the accident took place on a public street. He said a slightly different set of facts might make the case compensable.

Caulfield, of Levinson Axelrod in Edison, calls the decision “a little bit of a tightening of what we as lawyers assumed was compensable.”

Caulfield, who represents workers, says an employee instructed to park in a particular spot should be deemed to have arrived at work when she parks her car.

The county’s lawyer, John Tort Jr. of Leitner, Tort, DeFazio, Leitner & Brause in Edison, did not return a call.