BEVERLY GOULD VS. CORIZON HEALTH OF NJ(NEW JERSEY DEPARTMENT OF LABOR, DIVISION OFWORKERS' COMPENSATION) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0438-15T1
BEVERLY GOULD,
Petitioner-Respondent/
Cross-Appellant,
v.
CORIZON HEALTH OF NJ,
Respondent-Appellant/
Cross-Respondent.
____________________________________
Argued December 13, 2016 – Decided August 7, 2017
Before Judges Messano and Guadagno.
On appeal from the New Jersey Department of
Labor and Workforce Development, Division of
Workers' Compensation, Claim Petition No.
2013-1691.
Christopher M. Campanaro argued the cause
for appellant/cross-respondent (Brown &
Connery, LLP, attorneys; Michael Huber, on
the briefs).
Scott D. Schulman argued the cause for
respondent/cross-appellant (Petrillo &
Goldberg, PC, attorneys; Jeffrey M. Thiel,
on the brief).
PER CURIAM
On August 11, 2015, a judge of compensation, entered an
order, finding that petitioner, Beverly Gould suffered a
compensable injury while in the employ of respondent, Corizon
Health of New Jersey (Corizon), and directing Corizon to provide
Gould with temporary disability benefits, medical treatment,
payment for medical bills incurred, and out-of-pocket expenses
for related medical care. Gould, a licensed professional nurse,
fell in a parking lot owned by Burlington County after
completing her shift at the County Correctional Work Release
Center (CWRC), in Pemberton. The judge determined that the
parking lot was part of Gould's workplace and her injury arose
out of and in the course of her employment with Corizon.
Corizon now appeals from that order, arguing that Gould's
injuries are not compensable under N.J.S.A. 34:15-36. Gould
cross-appeals maintaining the judge correctly determined that
her injuries arose in the course of her employment with Corizon.
Alternatively, if we find her injury is not compensable, Gould
claims she should be deemed a special employee of both
Burlington County and Corizon.
In 2005, Gould began working for Dr. Evans who had
contracted with Burlington County to provide medical services at
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the Mt. Holly Jail. In November 2010, Corizon was awarded the
inmate medical services contract for Burlington County jails and
hired Gould to continue to provide nursing services at Mt.
Holly. In February 2011, Corizon transferred Gould to the CWRC
in Pemberton.
The Pemberton CWRC was owned and operated by Burlington
County. The facility has only one parking lot available for its
employees, contractors, vendors, and visitors. A few spaces are
reserved for the warden, superintendent, and the handicapped,
with the remaining spaces available on a first-come, first-
served basis. The Burlington County Highway Department was
responsible for maintaining the parking lot.
On March 29, 2012, Gould had just completed her shift and
was walking to her car in the parking lot. In her testimony
before the judge of compensation, Gould explained how she fell:
I was walking and they had, not too long
finished, it was like under construction to
make like a handicap, lower the ground to make
a handicapped accessible area, so we were
walking through that and it's like, I tripped
and because like it wasn't even, it was left
all ragged, you know, but I didn't see that
ahead of time and I tripped.
Gould fell, landing on her right knee. Three officers who
were with her helped Gould back to the facility where she was
evaluated by the nurse on call. Gould informed her supervisor,
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Maureen Haar, of her accident and sought authorization for
medical treatment. Haar advised Gould that she could not
receive workers' compensation and would have to see her own
doctor.
The following day, Gould saw her personal physician, Dr.
Dorfner who recommended she not return to work and referred her
to an orthopedist, Dr. Barr. Dr. Barr examined Gould on April
23, 2012, and diagnosed her with a sprain of the right knee. He
prescribed physical therapy and recommended that she not return
to work. Gould attempted to return to work on May 2, 2012, but
experienced leg and back pain. Gould returned to work on June
19, 2012, after she ran out of sick leave.
Gould filed a claim petition seeking workers' compensation
benefits from Corizon on January 22, 2013. After Corizon
opposed Gould's petition, she filed an amended petition adding
Burlington County as a named employer.
On January 29, 2013, an MRI revealed Gould suffered a torn
meniscus and partial tear of the anterior cruciate ligament.
After several injections to Gould's knee failed to provide
relief, Dr. Barr referred her to Dr. Paz, who recommend a total
right knee replacement.
In May or June 2013, Gould was notified by mail that she
had been terminated by Corizon. On September 22, 2014, Gould
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filed a motion for temporary disability benefits and coverage of
knee replacement surgery by Dr. Paz. Corizon and Burlington
County contested the matter and it was tried on three dates
between April and June 2015.
On August 11, 2015, the judge of compensation rendered an
oral decision. First, the judge found that Burlington County
was not a dual or special employer and dismissed it from the
case. Next, the judge analyzed N.J.S.A. 34:15-36, which
prohibits compensation for accidents occurring in areas outside
of the employer's control, and the "special mission" exception
to the "going and coming" rule which allows compensation if an
employee is
1. required to be away from the conventional
place of employment;
2. if actually engaged in the direct
performance of employment duties.
[Zelasko v. Refrigerated Food Express, 128
N.J. 329, 336 (1992).]
The judge determined that, because Gould's assignment
required her to occasionally travel to other facilities, the
first prong of the special mission test was satisfied. As to
the second prong, the judge found Gould
was an off site — off premises employee for
Corizon working at the Pemberton jail. She
tripped in the parking lot while walking to
her car at the end of her shift, [Gould] was
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not commuting or engaging in any personal
activities when she fell.
The judge concluded that Gould's fall in the parking lot
"arose out of and in the course of her off premises work at the
jail and that her injuries are compensable under the 'Special
Missions' exception to the premises rule."
On appeal, Corizon argues that Gould was not on a special
mission when she was injured; she had completed her work shift
at her regular place of employment, and was leaving the prison
facility. Corizon also argues that it did not own or control
the premises where Gould's injury occurred as the parking lot
was owned and maintained by Burlington County.
In a workers' compensation case, we must defer to the
factual findings and legal conclusions of the judge of
compensation as long as they "could reasonably have been reached
on sufficient credible evidence present in the record[.]"
Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262
(2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599
(1965)). However, legal questions "are not entitled to any
deference" and are subject to plenary review on appeal. Hersh v.
Cty. of Morris, 217 N.J. 236, 243 (2014).
The Workers' Compensation Act (WCA) requires employers to
compensate employees for injuries "arising out of and in the
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course of employment[.]" N.J.S.A. 34:15-7. Before 1979, the Act
did not define "employment." Over time, the "going and coming
rule" developed as a "judicially created doctrine which
ordinarily precludes the award of workers' compensation benefits
for accidental injuries sustained during routine travel to and
from an employee's regular place of work." Watson v. Nassau Inn,
74 N.J. 155, 158 (1977).
In 1979, the WCA was amended, defining "employment" more
restrictively, and eliminating many of the judicially-created
exceptions. See N.J.S.A. 34:15-36; Hersh, supra, 217 N.J. at
244. Those amendments defined when employment begins and ends:
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.]
The 1979 amendments replaced the "going and coming rule"
with the "premises rule" which "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 v. Morgan,
153 N.J. 298, 316 (1997) (citing Cressey v. Campus Chefs, Div.
of CVI Serv., Inc., 204 N.J. Super. 337, 342-43 (App. Div.
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1985)). The Legislature's use of the phrase "excluding areas
not under the control of the employer" was "intended to make
clear that the premises rule can entail more than the four walls
of an office or plant." Ibid. 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. Livingstone v. Abraham & Straus, Inc., 111
N.J. 89, 96-97 (1988).
Gould's accident occurred in a parking lot used by prison
and Corizon employees which was owned and maintained by
Burlington County. However, Burlington's ownership of the lot
is not dispositive, as Gould's injuries may be compensable if
Corizon exercised control over the parking lot. Hersh, supra,
217 N.J. at 245. Control exists when the employer owns,
maintains, or has exclusive use of the property. Livingstone,
supra, 111 N.J. at 104.
In Livingstone, employees of a store in a mall were
required to park in the far corner of the mall parking lot to
leave room for mall customers. Id. at 91. As the plaintiff-
employee was walking from her car to the employees' entrance,
she was struck by a car, sustained injuries, and sought
compensation. Ibid. A divided Court held that the plaintiff was
entitled to compensation because the store dictated that she had
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to park in a remote area of the parking lot and exposed her to
the added risk for the store's benefit and convenience. Id. at
105-06.
In other cases involving employees injured in a parking lot
while walking to or from their place of business, we have
focused on whether the employer required the employees to enter
or exit the employer's building by traversing the area where the
accident occurred.
Ehrlich v. Strawbridge & Clothier, 260 N.J. Super. 89, 90
(App. Div. 1992), certif. denied, 133 N.J. 435 (1993), involved
an employee who was injured when she fell on the sidewalk after
exiting a metal staircase designated by her employer for ingress
and egress. The staircase led to an exterior sidewalk that the
employee had to travel on in order to reach the parking lot
where her car was located. Ibid. We held the employee was
entitled to workers' compensation benefits, reasoning,
"[a]lthough the staircase and adjacent sidewalk leading from the
employee door was not a part of the store premises in a property
sense," the employer controlled the areas because it instructed
the employees which route to use to enter and exit the
employer's establishment. Id. at 92.
In Bradley v. State, 344 N.J. Super. 568 (App. Div. 2001),
we held that injuries sustained by state employees while
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traveling to work from a county-owned parking lot were
compensable because the employer's control over the parking lot
required each employee to follow a specific ingress and egress
route from the parking lot to the building, even though it was
not owned by the employer. Id. at 582. We held, "where the
employer has the right to control its employees' use of property
for ingress or egress to its place of employment, and an
accident occurs on that property, the accident is compensable."
Id. at 581 (citing Ramos v. M & F Fashions, 154 N.J. 583, 593-94
(1998)).
More recently, in Hersh, supra, the Court addressed
employer control under the premises rule, concluding that an
employee injured walking two blocks between her employer-
provided parking garage and her office building would not be
compensated under the WCA because the employer did not have
control over the garage or over the public street where the
injury occurred when a car ran a red light. 217 N.J. at 238.
Unlike Hersh, Gould's injury did not occur on a public
street, where the employer had no control, but in the only
parking available for all jail visitors and employees. Although
there is no evidence that Gould was actually directed by Corizon
to park in the Pemberton lot, there was no other lot provided.
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Corizon's contract1 with Burlington County required the
presence of a medical professional at each jail facility on a
twenty-four hour basis. Lieutenant Matthew Leith, of the
Burlington County Corrections Department, testified the
Administrative Code imposed a similar requirement.2 The primary
duty of the nurse was to provide medical care for the male and
female inmates, but if a correction officer, outside vendor, or
a visitor to the jail was in need of treatment, the nurse would
provide care on a limited basis. Leith also testified that the
Pemberton CWRC had a daily medical call at 4:00 a.m., when
1
During the testimony, the terms "contract" and request for
proposal or "RFP" were used interchangeably.
2
N.J.A.C. 10A:16-2.9(c) states:
the minimum requirements for a correctional
facility infirmary shall include, but not be
limited to:
1. A physician or advanced practice
nurse on call 24 hours per day, seven
days per week;
2. A Supervising Registered Nurse on
site at least one shift within a 24-hour
period, seven days per week;
3. All inmates being maintained within
sight or sound of a medical staff
person[.]
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diabetic inmates would have their blood checked before breakfast
and other inmates could have certain treatments.
After Gould was transferred from the Mt. Holly jail to the
Pemberton CWRC, she was assigned to work from 11:00 p.m. to 7:00
a.m. Gould would return once or twice a year to Mt. Holly for
meetings. When working at Pemberton, Gould's movements inside
the institution were restricted and she was accompanied by a
corrections officer whenever she saw an inmate in the clinic or
in a jail cell. She could not bring a cell phone into the
facility and if the nurse for the next shift did not show up in
time, she had to stay until her relief arrived.
Pictures introduced at the hearing indicate that the
parking lot is located immediately adjacent to the prison, is
enclosed by a fence, and is accessed by a long road through a
wooded area. Clearly, the lot is intended for the use of
employees and visitors to the prison and equally clear, they
have no alternative but to park in this lot.
Given the nature of Gould's employment at the Pemberton
CWRC requiring Corizon to provide medical services on a twenty-
four hour basis, the dedicated parking lot with restricted
access, we are satisfied that, like the plaintiff in
Livingstone, Gould's workday commenced when she arrived at the
parking lot in her car and ended after she left to drive home.
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Therefore, her injury occurred during the course of her
employment. See Livingstone, supra, 111 N.J. at 104. The fact
that Corizon "neither owned, maintained, nor had the right
exclusively to use this area of the lot, does not, in our view,
render her injuries noncompensable." Ibid.
As we are affirming the decision of the judge of
compensation that the jail parking lot was part of the premises
of the jail and Gould's workplace included the parking lot, we
need not address her conclusion that Gould's injuries were
compensable under the "special mission" exception.
Affirmed.
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