Opinion
DOCKET NO. A-1551-13T1
03-16-2015
LAURA BURKE, Petitioner-Appellant, v. INVESTORS BANK, Respondent-Respondent.
Richard N. Schibell argued the cause for appellant (Schibell, Mennie & Kentos, LLC, attorneys; Richard N. Schibell, of counsel; Ellen D. Fertakos, on the brief). Joseph M. Soriano argued the cause for respondent (Rotella & Soriano, attorneys; Mr. Soriano, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Sumners. On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Docket No. 2012-32601. Richard N. Schibell argued the cause for appellant (Schibell, Mennie & Kentos, LLC, attorneys; Richard N. Schibell, of counsel; Ellen D. Fertakos, on the brief). Joseph M. Soriano argued the cause for respondent (Rotella & Soriano, attorneys; Mr. Soriano, on the brief). PER CURIAM
This appeal requires us to determine whether an employee who slips and falls in front of a ground floor elevator in a multi-tenant office building while on her way to her upper-floor office has suffered a compensable injury under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142 (the Act). The Division of Workers' Compensation judge determined that the injury did not arise from the course of employment and was not compensable under the Act pursuant to the premises rule, N.J.S.A. 34:15-36. The crux of the matter is whether the area in front of the elevator was under the employer's control such that the employee had "arrive[d] at the employer's place of employment" when she was injured. Ibid. We conclude that the injury did not occur at the place of employment.
I
On the morning of December 3, 2012, petitioner Laura Burke parked her car in the parking garage of the office building in which she worked for respondent Investors Bank. Burke did not have an assigned parking space, but parked in one of the several hundred parking spaces allotted for Investors Bank employees. Investors Bank is one of five tenants in the ten-story office building and occupies the tenth floor as well as part of the ninth floor. According to its lease agreement, Investors Bank does not maintain the office building. The lease reserves the right of the landlord over "Building Operations," allowing the landlord to, among other things, "change the arrangement and location of entrances or passageways, doors, and doorways, corridors, elevators, stairs, restrooms, or other public parts of the [b]uilding."
As was her normal routine, Burke entered one of the building's two entrances and walked through the lobby toward one of the several elevators to take her to her tenth-floor office. The lobby was staffed with a security attendant, employed by the landlord, who monitored activity from a desk and recorded the entrance of visitors with a sign-in book. Beyond the security desk were the elevators and two stairways used by employees and visitors to access upper-floor offices. Investors Bank did not require its employees to use a specific entrance, elevator, or stairway to reach its offices. After Burke pressed the button on the elevator panel and approached an open elevator, she slipped and fell into the elevator, suffering injury to her knee.
Burke subsequently filed a petition for workers' compensation benefits. The parties consented to a bifurcated trial. After hearing testimony relating only to the issue of compensability and the application of the premises rule of the Act, the Division of Workers' Compensation judge issued a bench opinion concluding that Burke's injury was not compensable. The judge distinguished Burke's claim from that in Ramos v. M&F Fashions, 154 N.J. 583 (1988), where an employee's injury on a freight elevator used by the employer to conduct business was found to be compensable. The judge stated:
I find that the respondent employer did not dictate any specific entry into the lobby, nor mandate any specific use of one elevator or preclude the use of the stairways in order for [Burke] to gain access to the tenth floor office. And it is clear that the entryway, the lobby and the elevators are not in the control of respondent.
On appeal, Burke contends her injury was compensable because she was injured in an area controlled by Investors Bank, and her fall occurred in what was her only path of ingress to her office. She also argues that Ramos and public policy dictate that her injuries be compensated under the Act. Having considered these arguments in light of the record and applicable legal standards, we affirm substantially for the reasons expressed by the workers' compensation judge in his decision. We amplify his analysis with the following comments.
II
We limit our review of a workers' compensation court's decision to "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record . . . with due regard also to the agency's expertise[.]" Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). However, "legal findings are not entitled to any deference" and are subject to plenary review on appeal. Hersh v. Cnty. of Morris, 217 N.J. 236, 243 (2014); see also Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 368 (App. Div. 1996) (noting "deference need not be given where the judge has applied the wrong legal principles in coming to [his] conclusion.").
A petitioner bears the burden of establishing the compensability of the claim being made. See Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 263 (2003); Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). In accordance with N.J.S.A. 34:15-7, a workers' compensation benefits award is authorized to an employee injured in an "accident arising out of and in the course of employment." The term "employment" is further defined in N.J.S.A. 34:15-36, which provides: "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 was part of the Legislature's amendment to the Act in 1979, which reinstituted the premises rule that limits an employer's liability only for injuries occurring in areas controlled by the employer. Cressey v. Campus Chefs, Div. of CVI Serv., Inc., 204 N.J. Super. 337, 343 (App. Div. 1985). Absent a definition of "control" in the Act, the Supreme "Court has stated that control exists when the employer owns, maintains, or has exclusive use of the property." Kristiansen v. Morgan, 153 N.J. 298, 317 (1998) (citing Livingstone v Abraham & Straus, Inc., 111 N.J. 89, 104 (1988)). Thus, whether the Act compensates an employee's injury that occurred during ingress or egress to work is a fact-sensitive determination regarding the employer's control over the situs of the accident.
In support of her appeal, Burke relies upon Brower v. ICT Group, 164 N.J. 367, 369-70 (2000), where an employee, after clocking out of work, fell down a back stairway of a multi-tenant building. Employees were allowed to use the stairway for ingress and egress as well as for smoking breaks, and the stairway was not considered a common area within the building due to its physical layout and location. Id. at 373-74. Applying the premises rule, the Court held the injury was compensable as it occurred in an area only used by the employer's employees and thus was construed as being controlled by the employer. Ibid.
Burke also argues that, contrary to the workers' compensation judge's reasoning, Ramos requires compensability of her injury. She contends that like Ramos, she was injured while using an elevator in an area that was under her employer's control and that her employer approved the elevator for its regular business use, including the ingress and egress of its employees. We disagree.
Subsequent to the ruling of the workers' compensation judge, the Court in Hersh, supra, 217 N.J. at 236, provided a comprehensive analysis of the judicial decisions applying the premises rule where an employee was injured while coming or going to work outside of "the four walls of an office or plant." Id. at 250. While the petitioner in Hersh was injured on a public street and not an office lobby as was Burke, the principles set forth therein guide our decision in this case.
Petitioner addressed Hersh in her reply brief, and both parties argued its impact on this appeal at oral argument.
In Hersh, the Court concluded that case law "support[s] the principle that public places that are not under the control of the employer are not considered part of the employer's premises for purposes of workers' compensation benefits, even if employees use the route for ingress or egress to the place of employment, except in those instances where the employer controls the route." Hersh, supra, 217 N.J. at 249. There, the petitioner was injured after she parked her car in an employer-provided parking garage and was struck by a car as she attempted to cross a public street to get to her office. Id. at 238. The street was not under the oversight or authority of her employer and petitioner was not required to use that street as a means of ingress or egress to work. Ibid. Thus, the Court denied compensability under the Act, reasoning that when petitioner was injured, "she had not yet arrived at work for purposes of N.J.S.A. 34:15-36," because "where she parked was 'not under the control of the employer' so as to trigger coverage." Ibid. (quoting N.J.S.A. 34:15-36). The Court recognized that while an employer's premises "is not limited to the four walls of an office or plant, the concept of 'employer control' to determine the compensability of an employee's injury is limited, and depends on the situs of the accident and the degree of employer's control of the property." Id. at 250.
Applying the principles set forth in Hersh, as well as the other aforementioned cases, we conclude that Burke's injury is not compensable under the Act. The workers' compensation judge's determination that Investors Bank did not have control over the lobby area where Burke fell is supported by sufficient credible evidence in the record. Investors Bank does not own the office building, but is one of five building tenants. Burke presented no evidence that Investors Bank had any control or authority over the lobby or the elevators where her injury occurred. The landlord monitored the flow of workers and visitors within the building. Investors Bank did not maintain or have exclusive use of the lobby or elevators. Burke was not directed by Investors Bank to use the route she took to get to her tenth-floor office.
We agree with the Workers' Compensation judge that Ramos does not mandate compensation for Burke's injury. The essence of the ruling in Ramos was that the injury occurred on a freight elevator that was used for the movement of the employer's products, and as such the elevator was under the employer's control even when it was used by employees for ingress and egress.
Here, in contrast, Burke's accident occurred in a common area - the main lobby - that was accessible to any employee or visitor having business in the multi-tenant office building. Burke was injured as she was about to enter one of the several lobby elevators used by all the employees and their visitors in the building. Neither the lobby area nor elevator were controlled by Investors Bank.
The facts here are akin to Hersh where the premises rule barred compensation to a petitioner injured while crossing a public street from her employer-provided parking garage. As in Hersh, Investors Bank did not direct Burke's path to the office from an employer-provided parking garage and did not have control over the area where Burke slipped and fell. Moreover, the facts here are unlike the situation in Brower where the Court held that an injury was compensable because it occurred on a back stairway used exclusively by employees of the employer. In this case, Burke's accident occurred in a common area that was used by anyone having business in the building.
Lastly, we find no merit to Burke's contention that public policy mandates that her injury be compensated under the Act. Based on the record before us, petitioner would have us hold her employer liable for an injury that occurred in a common area of a multi-tenant office building over which her employer had no authority or control. This is contrary to our reading of Hersh and the public policy expressed by our Legislature that, pursuant to the premises rule, an employer is only liable for employee injuries that occur on premises over which the employer has control. Since Investors Bank did not control the area where Burke was injured, it is not liable under the Act.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION