BRENDA S. LESLIE, Petitioner- v. BOARD OF EDUCATION

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2074-05T22074-05T2

BRENDA S. LESLIE,

Petitioner-Appellant,

v.

BOARD OF EDUCATION,

PATERSON PUBLIC SCHOOLS,

Respondent-Respondent.

______________________________________________________________

 

Argued July 12, 2006 - Decided August 7, 2006

Before Judges Fuentes and Graves.

On appeal from a Final Judgment of the

New Jersey Department of Labor & Industry,

Division of Workers' Compensation, 2004-30739.

Laurie W. Fiedler argued the cause for appellant

(Fiedler & Schepis, attorneys; Ms. Fiedler, on

the brief).

Wood DeYoe argued the cause for respondent

(DeYoe, Heissenbuttel & Buglione, attorneys;

Laureen Moloney, on the brief).

PER CURIAM

This is a workers' compensation appeal. Petitioner Brenda S. Leslie, an employee of the Paterson Board of Education, twisted her left ankle and broke her left foot when she stepped into a pothole on Richmond Avenue in Paterson, at approximately 8:15 a.m., prior to arriving at her place of employment. The Division of Workers' Compensation concluded that petitioner's claim was not compensable because the accident did not arise out of and in the course of her employment. We affirm.

The findings and conclusions by the workers' compensation judge included the following:

This matter comes before the Court pursuant to a claim petition filed in October of 2004 in which it was alleged petitioner suffered an injury on June 8th of 2004. And the claim petition indicated that she stepped in a pothole while walking in the street. Respondent filed an answer alleging that the accident or injury did not arise out of and in the course of employment, thereby, denying the claim. Subsequently, the respondent filed a Notice of Motion to Dismiss with a certification which is dated February 11th of 2005.

. . . .

For years the going and coming and coming and going cases reflected a general erosion of the law to further and further extend the respondent's liability. And it is clear from the case law and comments made in the cases that the 1980 revision to the workers' compensation law was expressly intended to deal with the problems created thereby, and, generally, for the same reasons that are applied in this case.

. . . .

[T]he generally accepted rule is the Premises Rule that you have to be on the premises when your work day commences. Now, there's [an] exception to that which doesn't apply here. However, Ms. Leslie on this particular day parked on a public street. She is walking to the public school, place of employment. . . . It's a public street. She parked on [a] public street. She was on her way to work. Her workday had no[t] yet commenced when she suffered the injuries. That's the undisputed fact of this case. And her workday having not commenced, any injury that she sustained did not arise out of and in the course of her employment because she was not yet in the place of her employment . . . . So for those reasons the Court must grant the respondent's Motion to Dismiss the claim with prejudice due to the lack of jurisdiction of the Court since petitioner's injuries did not arise out of and in the course of employment.

Claimants for workers' compensation benefits must demonstrate that their injuries result from "an accident arising out of and in the course of [their] employment." N.J.S.A. 34:15-1. Employment generally commences "when an employee arrives at the employer's place of employment to report for work" and terminates "when the employee leaves the employer's place of employment. . . ." N.J.S.A. 34:15-36. But the Court has recognized the need for a "flexible approach" when resolving "in the course of employment" issues. Livingston v. Abraham & Straus, Inc., 111 N.J. 89, 104 (1988). If an employee sustains an injury in an area under the control of the employer, the injury is deemed to occur "in the course of employment." Livingston, supra, 111 N.J. at 103. On the other hand, an award of compensation benefits is generally precluded "for accidents occurring in areas outside of the employer's control." Brower v. ICT Group, 164 N.J. 367, 371-72 (2000). "[T]he situs of the accident and the employer's control of that location are the dispositive factors." Id. at 372.

Here, it is undisputed that plaintiff's injuries were sustained prior to her arrival at her employer's place of employment; her employer did not provide parking facilities for its employees, or instruct them where to park; and petitioner was not in an area under the control of the employer at the time of the accident. Under these circumstances, we agree that the petitioner's claim for compensation benefits is barred by N.J.S.A. 34:15-36.

Affirmed.

 

(continued)

(continued)

4

A-2074-05T2

August 7, 2006

 


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