DIANE S. LAPSLEY VS. TOWNSHIP OF SPARTA (DIVISION OF WORKERS' COMPENSATION) ( 2021 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0958-19T3
    DIANE S. LAPSLEY,
    Petitioner-Appellant,                APPROVED FOR PUBLICATION
    January 29, 2021
    v.                                            APPELLATE DIVISION
    TOWNSHIP OF SPARTA and
    SPARTA PUBLIC LIBRARY,
    Respondents-Respondents,
    and
    PAUL AUSTIN and SPARTA
    DEPARTMENT OF PUBLIC
    WORKS,
    Intervenors-Respondents.
    ____________________________
    Argued October 28, 2020 – Decided January 29, 2021
    Before Judges Sumners, Geiger, and Mitterhoff.
    On appeal from the New Jersey Department of Labor
    and Workforce Development, Division of Workers'
    Compensation, Claim Petition No. 2016-1756.
    Matheu D. Nunn argued the cause for appellant
    (Einhorn, Barbarito, Frost & Botwinick, PC,
    attorneys; Matheu D. Nunn, of counsel and on the
    briefs; Christopher L. Musmanno and Christine M.
    McCarthy, on the briefs).
    William G. Johnson and John R. Tort, Jr., argued the
    cause for respondents (Johnson & Johnson, attorneys
    for intervenors Paul Austin and Sparta Department of
    Public Works; Leitner, Tort, DeFazio, Leitner &
    Brause, PC, attorneys for respondents Township of
    Sparta and Sparta Public Library; William G. Johnson
    and John R. Tort, Jr., of counsel and on the joint
    brief).
    The opinion of the court was delivered by
    MITTERHOFF, J.A.D.
    Petitioner Diane Lapsley appeals from a November 25, 2016 order
    entered by a judge of compensation concluding that injuries she sustained in a
    February 3, 2014 accident arose out of and in the course of her employment as
    a Sparta Township librarian pursuant to the Workers' Compensation Act (the
    Act), N.J.S.A. 34:15-1 to -146. After clocking out and exiting the library
    premises, petitioner was struck by a snowplow in an adjacent parking lot that
    happened to be owned by the township. The compensation judge concluded
    that petitioner's injuries were compensable pursuant to the premises rule,
    N.J.S.A. 34:15:36, which 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
    . . . ." Having reviewed the record and the applicable legal principles, we
    A-0958-19T3
    2
    conclude that a mechanical application of the premises rule in the context of a
    public-entity employer deviates from well-settled principles applicable to
    private employers and invites an overbroad and unwarranted expansion of
    public-entity liability for workers' compensation claims. We therefore reverse.
    Petitioner was employed as a librarian at the Sparta Township Library. 1
    Her duties included supervising staff, ordering books, and creating marketing
    materials for library events. The library is located within a municipal comple x
    that also includes three common-use parking lots, a baseball field, and Sparta
    Township Board of Education offices. The common-use parking lots are free
    for use both by township employees as well as the general public. None of the
    parking areas within the common-use lot contain designated spots for
    petitioner or any other township employees. Thus, the township imposed no
    restrictions on petitioner in terms of paths of ingress or egress to and from the
    public parking lot and the library. Id.
    On February 3, 2014, the library closed early due to inclement weather.
    Id.     Petitioner's husband came to pick her up and parked in one of the
    common-use parking lots. Id. After stepping off the library curb and walking
    about eighteen feet into the lot, the couple was hit by a snowplow driven by a
    Sparta Township Department of Public Works employee. Petitioner sustained
    1
    The parties have stipulated to the facts underlying this appeal.
    A-0958-19T3
    3
    injuries to her leg that required multiple surgeries and have left her
    permanently disfigured.
    On August 8, 2014, petitioner filed a complaint in the Law Division
    alleging negligence against Sparta Township, Sparta's Department of Public
    Works, Sussex County, and the driver of the snowplow. On September 29,
    2014, Sparta Township filed a motion to dismiss in lieu of an answer, arguing
    petitioner's claim was barred by the exclusive remedy provision of the Act.
    The motion was denied and Sparta Township was ordered to file an answer. 2
    On January 19, 2016, petitioner moved for summary judgment
    requesting a ruling that she did not sustain a compensable injury encompassed
    by the Act. Sparta Township cross-moved for a stay and requested the matter
    be transferred to the Division of Workers' Compensation (Division), or in the
    alternative, for summary judgment.
    While the motions were pending, in order to toll the statute of
    limitations, petitioner filed a protective claim petition in the Division and
    requested a stay pending resolution of the Law Division matter. The Township
    of Sparta filed an answer to the claim petition on January 28, 2016. Sparta's
    Department of Public Works and the snowplow driver successfully moved to
    2
    The parties stipulated to the dismissal of Sussex County from the case.
    A-0958-19T3
    4
    intervene   as   co-respondents      in   the   Workers'    Compensation       matter.
    Meanwhile, on February 19, 2016, the trial judge denied petitioner's motion for
    summary judgment and granted defendants' request for a stay of the Law
    Division matter, to allow the compensability issue to be resolved in the
    Division.
    On November 25, 2016, a Workers' Compensation judge found
    petitioner's injuries were compensable under the Act. Relying on Brower v.
    ICT Group, 
    164 N.J. 367
     (2000), the compensation judge determined that
    Sparta Township's ownership, maintenance, and right to control the parking lot
    were sufficient to find that the injury occurred on the employer's premises. 3
    The facts that petitioner had clocked out, and that her employer had not
    actually exercised any degree of control over the parking lot, did not preclude
    compensability under the Act. 
    Id.
    Following the finding of compensability, the parties executed a consent
    order staying matters in both the Law Division and Division pending this
    appeal. The Law Division matter was dismissed without prejudice on April
    3
    We agree with the compensation judge's finding that exclusive use is not necessary to
    find compensability. We read Brower, however, to hold that an employer's exclusive
    use of the situs of an employee's injury is sufficient, but not necessary, to find
    compensability. See Brower, 
    164 N.J. at 372-73
    .
    A-0958-19T3
    5
    20, 2018.    On October 22, 2018, the compensation judge issued an order
    approving settlement subject to petitioner's appeal.
    On appeal, petitioner argues the compensation judge erred by
    determining her injuries arose out of her employment because she was not
    engaged in a task for her employer's benefit when the injury occurred. She
    further contends that it was error to find the injury occurred during the course
    of her employment because she was off the clock and no longer within the
    confines of the library when the injury occurred. Petitioner urges that public
    policy and legislative intent would not be served if we found that a public
    employer's right to control the situs of an employee's injury satisfied the
    premises rule.4
    Respondent argues that the compensation judge correctly found the
    injury compensable. Respondent further contends the Act's exclusive remedy
    provision is applicable, because petitioner was injured by a co-employee
    immediately after leaving work, while on property owned, maintained, and
    used by her employer.
    We review final decisions from the Division in accordance with a
    deferential standard of review.         "An administrative agency's final quasi-
    4
    Petitioner also argues this court should grant her appeal as of right. Respondents have
    not opposed her right to appeal, and we find it unnecessary to address the issue.
    A-0958-19T3
    6
    judicial decision will be sustained unless there is a clear showing that it is
    arbitrary, capricious, or unreasonable, or that it lacks fair support in the
    record." Russo v. Bd. of Trustees, Police, 
    206 N.J. 14
    , 27 (2011). We are not,
    however, "bound by [an] agency's interpretation of a statute or its
    determination of a strictly legal issue," Mayflower Sec. Co. v. Bureau of Sec.,
    
    64 N.J. 85
    , 93 (1973), particularly when "that interpretation is inaccurate or
    contrary to legislative objectives."   Russo, 
    206 N.J. at 27
     (quoting G.S. v.
    Dep't of Human Servs., Div. of Youth & Family Servs., 
    157 N.J. 161
    , 170
    (1999)). Instead, this court reviews an agency's interpretation of statutes and
    case law de novo. N.J.S.A. 34:15-1 – 146; Mayflower Sec. Co., 
    64 N.J. at 93
    .
    The Act has been described as "humane social legislation designed to
    place the cost of work-connected injury on the employer who may readily
    provide for it as an operation expense." Livingstone v. Abraham & Straus,
    Inc., 
    111 N.J. 89
    , 94-95 (1988) (quoting Hornyak v. Great Atl. & Pac. Tea Co.,
    
    63 N.J. 99
    , 101 (1973)). The Act entitles an employee to recover for injuries
    "arising out of and in the course of his employment . . . . " N.J.S.A. 34:15 -1.
    Whether a particular accident arose out of and in the course of
    employment raises a two-part question. Acikgoz v. New Jersey Tpk. Auth.,
    
    398 N.J. Super. 79
    , 87-88 (App. Div. 2008); Stroka v. United Airlines, 
    364 N.J. Super. 333
    , 339 (App. Div. 2003).          First, there must be a causal
    A-0958-19T3
    7
    connection between the employment and the accident itself. Acikgoz, 
    398 N.J. Super. at 87-88
    ; Stroka, 
    364 N.J. Super. at 339
    . Second, there must be a time-
    and-place nexus between the injured worker's employment and the accident.
    Acikgoz, 
    398 N.J. Super. at 87-88
    ; Stroka, 
    364 N.J. Super. at 339
    . "That the
    injured employee may have been 'off the clock' does not automatically
    preclude compensability because the situs of the accident is a dispositive
    factor." Ackigoz, 
    398 N.J. Super. at
    88 (citing Valdez v. Tri-State Furniture,
    
    374 N.J. Super. 223
    , 232-33 (App. Div. 2005)).
    Although the Act has been broadly interpreted to bring as many cases as
    possible within its coverage, Silagy v. State, 
    105 N.J. Super. 507
    , 510 (App.
    Div. 1969), it was amended by the Legislature in 1979 to "reduce costs by,
    among other things, 'sharply curtail[ing compensability for] off-premises
    accidents.'"   Stroka, 
    364 N.J. Super. at 338-39
     (quoting Jumpp v. City of
    Ventnor, 
    177 N.J. 470
    , 477 (2003)). Prior to the amendments, courts applied
    the going and coming rule, "a doctrine that prevented awarding workers'
    compensation benefits for accidental injuries that occurred during routine
    travel to or from the employee's place of work." Hersh v. Morris, 
    217 N.J. 236
    , 243 (2014).    The going and coming rule drew a distinction between
    ordinary risks unrelated to employment, and those that were incidental to
    employment. 
    Ibid.
     Its underlying principle was "that the normal journey to
    A-0958-19T3
    8
    and from work is of no particular benefit to the employer and exposes the
    worker to no unusual risks." 
    Ibid.
    Over the years, however, courts crafted so many exceptions to the going
    and coming rule that it remained applicable only to a narrow set of
    circumstances. Briggs v. Am. Bilrite, 
    74 N.J. 185
    , 189-90 (1977). When the
    Legislature amended the Act in 1979, it provided a more restrictive definition
    of "employment" in order to curtail compensability. Hersh, 217 N.J. at 244.
    Employment, as defined by the Act subsequent to the 1979 amendments:
    [S]hall 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.]
    With the 1979 amendments, the going and coming rule was replaced
    with the premises rule. Kristiansen v. Morgan, 
    153 N.J. 298
    , 316 (1997).
    "The premises rule is based on the notion that an injury to an employee 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."    
    Ibid.
     Like the going and
    coming rule, the premises rule distinguishes between accidents that occur on
    the employer's premises from those that do not. Ramos v. M & F Fashions,
    
    154 N.J. 583
    , 591 (1998). The Court has explained, however, that the phrase
    A-0958-19T3
    9
    "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." Kristiansen, 153 N.J. at 316-17. When determining whether
    an employee's injury took place on an employer's premises, courts consider (1)
    the situs of the accident; and (2) whether the employer had control of the situs
    of the injury. Ibid. (citing Livingstone, 
    111 N.J. at 96
    ).
    In Livingstone, the Court extensively analyzed the body of case law
    interpreting the "going and coming rule" beginning with Bryant v. Fissell, 
    84 N.J.L. 72
    , (Sup. Ct. 1913), through the 1979 amendment to N.J.S.A. 34:15 -36.
    Ehrlich v. Strawbridge & Clothier, 
    260 N.J. Super. 89
    , 90-91 (App. Div. 1992)
    (citing Livingstone, 
    111 N.J. at 95-100
    ). "[T]he Court identified a group of
    cases holding that 'parking lots owned, maintained, or provided by employers
    were to be considered part of the employer's premises, and that injuries
    occurring in such lots before or after the actual work day arose out of and in
    the course of employment.'" 
    Ibid.
     (quoting Livingstone, 
    111 N.J. at 99
    ). After
    reviewing the 1979 amendments to the Act, the Livingstone Court stated:
    [W]e are persuaded that the Legislature impliedly
    approved of the principle established by those cases,
    namely, that lots owned, maintained, or used by
    employers for employee parking are part of the
    employer's premises, and had no intent to affect the
    validity of such decisions . . . The omission of any
    provision purporting to overrule or limit the reach of
    the parking-lot cases, in light of the comprehensive
    A-0958-19T3
    10
    nature of the amendment, indicates that the
    Legislature considered these cases to be consistent
    with the economic tradeoffs struck by the Act, and
    therefore in need of no correction.
    [Ibid. (quoting Livingstone, 
    111 N.J. at 102-03
    ).]
    Since Livingstone was decided, however, the Court has narrowed
    applicability of the premises rule in parking lot cases. In Novis v. Rosenbluth,
    an employee was injured "while walking across the only sidewalk leading from
    an office-building parking lot to the entrance of the office building of which
    her employer's branch office was located."      
    138 N.J. 92
    , 93 (1994).      The
    parking lot was adjacent to the office building and accommodated the
    building's tenants, including employees and visitors of the employer. 
    Ibid.
    The employee had not received any instruction from her employer regarding
    her use of the lot. 
    Id. at 94
    .
    In reversing our decision in Novis, the Supreme Court found that
    Livingstone had incorrectly been construed to adopt a per se rule that an
    employer's "use" of a parking lot to benefit its employees automatically
    satisfied the premises rule. 
    Id. at 94-95
    . In that regard, the Court noted that
    the employer had not exercised any degree of control over its employee's use
    of the common-use parking lot. 
    Id. at 96
     (emphasis added). Rather, it "simply
    shared the lot with the other tenants." 
    Ibid.
     Thus, lacking the critical element
    of employer-directed control of the employee's use of the lot, the Court found
    A-0958-19T3
    11
    the injury non-compensable. Ibid.; see also Hersh, 217 N.J. at 249-50 (finding
    an injury sustained in a cross-walk while walking from an employer-provided
    parking lot to the place of employment non-compensable, in part, because
    paths of ingress or egress were not dictated by the employer); cf. Bradley v.
    State, 
    344 N.J. Super. 568
    , 579 (App. Div. 2001) (finding off-premises injuries
    sustained while using employer-directed paths of ingress or egress before or
    after work compensable).
    A critical factor in the evolution of Workers' Compensation off-premises
    parking lot cases, then, is the degree of control the employer exercises over the
    employee's use of the lot. An injury will be compensable if it is sustained
    while the employee is using the lot where the manner of ingress or egress is
    dictated by the employer, Bradley, 344 N.J. Super. at 579, or in an area where
    the employee parks at the employer's direction for the employer's proprietary
    gain.    Livingstone, 
    111 N.J. at 105-06
    .     Use of a shared parking lot that
    accommodates multiple tenants, without specific instruction from an employer,
    is not sufficient to satisfy the premises rule. Novis, 
    138 N.J. at 96
    .
    This case is distinguishable from the foregoing authorities, of course,
    because the Township happens to own the parking lot adjacent to the library.
    Nevertheless, we conclude that there is no reasoned basis to depart from the
    general rule that the library's "use" of the common-use parking lot for its
    A-0958-19T3
    12
    employees' benefit is not sufficient to satisfy the premises rule.        It was
    stipulated that petitioner was off-the-clock at the time of the accident and had
    exited the library premises. Library employees were not given any instructions
    about where in the subject lot to park or indeed whether to park in that
    particular lot, on the street, or anywhere else in town where parking may be
    available. Nor were library staff instructed on the manner of ingress or egress.
    The lot was shared with other municipal employees and members of the public
    alike.     Thus, the stipulated facts established that petitioner's employer
    exercised no control of its employee's use of the subject lot, that control being
    a critical element of the premises rule's application.
    The reason control of an employee's use of the property is critical in a
    public-employer context is illustrated in Ackigoz, 
    398 N.J. Super. at 90
    . In
    Ackigoz, two New Jersey Turnpike Authority (NJTPA) employees had a car
    collision while crossing an overpass that led to and from a NJTPA facility. 
    Id. at 82
    . Both drivers were off the clock at the time of the accident; one was
    heading home and the other was returning to the facility to pick up his
    paycheck. 
    Ibid.
     The overpass was owned and maintained by the NJTPA and
    used by its employees, State Police, business invitees, and the general public.
    
    Id. at 90
    . The roadway was only one of several means of ingress and egress to
    the maintenance yard, including one access that adjoined a public road.
    A-0958-19T3
    13
    Although the NJTPA specifically permitted its employees to use the overpass,
    it neither encouraged nor discouraged the use of the roadway leading to the
    access overpass where the accident occurred.
    After the accident, one of the drivers sought to bar a third-party
    negligence claim against him, alleging both drivers were in the course of their
    employment at the time of the accident because the situs of the accident was
    owned, controlled and maintained by their mutual employer.           
    Id. at 82
    .
    Rejecting that compensability was established based solely on the NJTPA's
    ownership and maintenance of the roadway, we observed such a conclusion:
    [W]ould essentially abrogate the premises rule
    because the [NJTPA] owns and maintains the entire
    New Jersey turnpike system. Clearly, the mere fact
    that an [NJTPA] employee was involved in an
    accident on a road owned and maintained by the
    [NJTPA] cannot serve as a sufficient basis to conclude
    the accident occurred in the course of petitioner's
    employment.
    [Id. at 90.]
    Despite the NJTPA's undisputed ownership and maintenance of the
    location, we upheld the compensation judge's conclusion that neither driver
    was in the course of their employment at the time of the accident. Relevant to
    this case, one driver had left the designated parking area of the facility where
    he worked and was on his way home.          We agreed that once he left the
    designated parking lot, the route became part of his normal commute and he
    A-0958-19T3
    14
    was no longer on the employer's premises. This despite the fact that the
    premises of his employer and the accident site were each owned, maintained
    and controlled by the NJTPA. 
    Id. at 89
    .
    Similarly, in this case the Township owns and maintains multiple
    properties and roadways within its geographical boundaries, including the
    library premises and the adjacent parking lot. Library employees, however,
    are neither encouraged nor discouraged from utilizing the subject common -use
    lot. Like the employee in Acikgoz, once petitioner clocked out and exited the
    library premises, she embarked on her normal commute home. To conclude
    that petitioner's injuries would be compensable on any town-owned lot or
    roadway after leaving the library premises would be an unwarranted and
    overbroad expansion of public-entity exposure for workers' compensation
    claims under the Act.
    Reversed.
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    15