Opinion
DOCKET NO. A-4797-12T1
01-17-2014
CARLA BURDETTE, Petitioner-Respondent, v. HARRAH'S ATLANTIC CITY, Respondent-Appellant.
Walter J. LaCon argued the cause for appellant (Cooper, Levenson, April, Niedelman & Wagenheim, attorneys; Mr. LaCon, on the brief). Frank A. Petro argued the cause for respondent (Petro, Cohen, Petro, Matarazzo, PC, attorneys; Steven S. Lubcher, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Harris.
On appeal from the Division of Workers' Compensation, Department of Labor, Claim Petition No. 2012-27907.
Walter J. LaCon argued the cause for appellant (Cooper, Levenson, April, Niedelman & Wagenheim, attorneys; Mr. LaCon, on the brief).
Frank A. Petro argued the cause for respondent (Petro, Cohen, Petro, Matarazzo, PC, attorneys; Steven S. Lubcher, on the brief). PER CURIAM
Defendant Harrah's Atlantic City appeals from the May 16, 2013 order of the Division of Workers' Compensation (the Division), which found that petitioner Carla Burdette "met with a compensable accident on September 19, 2012 and is entitled to reasonable and necessary medical treatment and temporary disability benefits pursuant to statute." We affirm.
I.
On September 19, 2012, after completing her shift as a casino dealer at Harrah's, Burdette proceeded to her 2003 Ford Explorer in Harrah's parking yard. Shortly after 10:00 p.m., Burdette drove her vehicle along an internal Harrah's driveway, passed through a Harrah's security gate, and proceeded to commence a lawful left turn to drive southeast on MGM Mirage Boulevard (also known as Renaissance Point Boulevard), a three-lane public highway.
As Burdette's vehicle entered MGM Mirage Boulevard, a northwest-bound Toyota Camry collided with the Explorer, directly striking the Explorer's driver door. At the point of impact, Burdette's vehicle was located partially on MGM Mirage Boulevard, but was still partly over Harrah's driveway's apron. The subsequent police-created accident report and images from security cameras are consistent in depicting Burdette's vehicle at the time of the accident as being positioned as follows:
Image materials not available for display.
On October 25, 2012, Burdette filed a workers' compensation claim petition with the Division asserting injuries to her "[h]ead, neck, back, bilateral hands, bilateral shoulders and left knee."
On January 30, 2013, Harrah's filed its answer denying responsibility for Burdette's claim. It contemporaneously filed a motion to dismiss.
On February 22, 2013, Burdette filed a motion for temporary and medical benefits.
On May 16, 2013, the judge issued an oral decision with respect to the competing motions. The judge declared that "[t]he only issue that the Court must decide . . . is whether petitioner was still in the course of her employment with Harrah's when the accident occurred." After indicating that he had (1) reviewed a videorecording "of the accident and where petitioner's vehicle ended up after the accident," (2) read police report, and (3) "made two trips to the scene of the accident [in April 2013]," the judge concluded: "[T]he petitioner's vehicle after the collision [exited] the parking lot, but not completely. There is approximately one foot in length of petitioner's car still in the area of the parking lot controlled by Harrah's." The judge held that because
the petitioner's car was still, no matter how little or how much, still in the respondent's parking lot and by applying the [Livingstone v. Abraham & Straus, Inc., 111 N.J. 89 (1988)] case, that equals that petitioner was still in her course of employment with Harrah's in accordance with N.J.S.A. 34:15-7.Accordingly, a May 16, 2013 order for medical and temporary disability benefits was entered declaring,
Petitioner met with a compensable accident on September 19, 2012 and is entitled to reasonable and necessary medical treatment and temporary disability benefits pursuant to statute. The Court will consider further proofs with respect to Respondent's specific liability. Respondent's Application for Stay is denied, however, as an interim measure, pending consideration of further proofs. Respondent shall pay temporary disability benefits beginning March 18, 2013.This appeal followed.
Because the May 16, 2013 order did not actually award any amounts for medical and temporary disability benefits, the appeal is interlocutory. Carberry v. State, Div. of Police, 279 N.J. Super. 114, 116 n.1 (App. Div.) certif. denied, 141 N.J. 94 (1995). But cf. Della Rosa v. Van-Rad Contracting Co., 267 N.J. Super. 290, 293-94 (App. Div. 1993) (award of temporary benefits by judge of compensation is appealable as of right). Out of an abundance of caution, we grant leave to appeal nunc pro tunc and decide the merits.
II.
On appeal, Harrah's contends that the judge of compensation misapplied the premises rule found in N.J.S.A. 34:15-36 by basing his decision "upon the disposition of the vehicle rather than the place where the Petitioner-Respondent's accidental injuries occurred." Additionally, because "[t]he facts of this case irrefutably prove that the accident occurred, and the Petitioner-Respondent's alleged injuries occurred on [] MGM Mirage Boulevard," the accidental injuries did not occur within the physical limits of Harrah's premises and are not compensable. We disagree.
The Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -142, provides, in relevant part, that
[w]hen employer and employee shall by agreement, either express or implied, as hereinafter provided, accept the provisions of this article compensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of employment shall be made byDetermining whether a given accident arose out of, and in the course of, employment engenders a two-part analysis. Acikgoz v. N.J. Tpk. Auth., 398 N.J. Super. 79, 87-88 (App. Div.), certif. denied, 195 N.J. 418 (2008). First, a causal connection must exist between the employment and the accident itself. Id. at 87. Second, a time-and-place nexus must exist between the injured worker's employment and the accident. Id. at 87-88. A claimant bears the burden to show that: (1) she sustained an injury "in the course of employment;" and (2) the injury "arose out of" her employment. See N.J.S.A. 34:15-7. Courts make this determination on a case-by-case basis. Nemchick v. Thatcher Glass Mfg. Co., 203 N.J. Super. 137, 143 (App. Div. 1985).
the employer without regard to the negligence of the employer . . . .
[N.J.S.A. 34:15-7.]
Entitlement to workers' compensation benefits is controlled by the premises rule set forth in N.J.S.A. 34:15-36. See Kristiansen v. Morgan, 153 N.J. 298, 316-17 (1998). The statute provides that "[e]mployment 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 is based on the notion that an injury to an employee that happens going to or coming from work arises out of and in the course of employment if the injury takes place on the employer's premises." Kristiansen, supra, 153 N.J. at 316 (citing Cressey v. Campus Chefs, Div. of CVI Serv., Inc., 204 N.J. Super. 337, 342-43 (App. Div. 1985)). 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 of the employer's premises.'" Ibid. (quoting Cressey, supra, 204 N.J. Super. at 342). The Court further noted:
The 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 phrase was intended to make clear that the premises rule can entail more than the four walls of an office or plant.
[Ibid.]
Consistent with that interpretation, the Court has recognized that "[c]ontrol as defined in the Workers' Compensation Act differs from the 'formal property law sense'; the former definition is more expansive." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 592 (1998). "The pivotal questions under the premises rule are (1) where was the situs of the accident, and (2) did the employer have control of the property on which the accident occurred?" Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 350 (App. Div. 1999) (citing Kristiansen, supra, 153 N.J. 298, 316-17 (1998)).
Because the Act is humanitarian social legislation, it is to be liberally construed in favor of coverage, for the protection of employees. Valdez v. Tri-State Furniture, 374 N.J. Super. 223, 232 (App. Div. 2005); see also Zahner v. Pathmark Stores, Inc., 321 N.J. Super. 471, 477 (App. Div. 1999) (noting the courts' liberal construction of the Act's provisions in favor of employees to accomplish its "beneficent purposes").
The circumstances of the present case plainly reveal that Burdette never fully left her employer's premises. Although her vehicle was in the midst of navigating a left turn onto a public thoroughfare, the exact spot where Burdette suffered injuries was neither remote from, nor unconnected to, her work premises. We reject Harrah's ultra-rigid approach that focuses only on the colliding vehicles' point of impact and the front seat location of Burdette in her Explorer. Instead, applying common sense and the policies inherent in the Act, we subscribe to the judge of compensation's viewpoint that the injuries suffered here were a result of Burdette's firm attachment to her place of employment, albeit while on her way home. The fact that the public also used the northwest travel lanes of MGM Mirage Boulevard does not change the result. The inextricable connection between Harrah's premises and the collision would render a parting of the accidental injuries from compensability an unjust result.
The judge of compensation's reliance upon Livingstone to support his holding that parking lots owned, maintained, or provided by employers were appropriately considered part of the employer's premises is unassailable because the Court acknowledged the Legislature's intent in framing the premises rule's contours. Livingstone, supra, 111 N.J. at 102. Harrah's contention that Livingstone sought to limit "judicially-created exceptions to the general noncompensability of off-premises accidents . . . ." is correct. Livingstone, supra, 111 N.J. at 103. However, this argument is misplaced because the judge of compensation clearly relied on the case for its general proposition that parking lots either owned, maintained, or operated by employers are properly considered part of the employer's premises. No error was committed.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION