KENIA SETHMAN - v. ADECCO EMPLOYMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4020-07T34020-07T3

KENIA SETHMAN,

Petitioner-Appellant,

v.

ADECCO EMPLOYMENT,

Respondent-Respondent.

_________________________________

 

Submitted February 11, 2009 - Decided

Before Judges Axelrad and Parrillo.

On appeal from the Department of Labor, Division of Worker's Compensation, Claim Petition No. 2003-29013.

Donald Werner, attorney for appellant.

Braff, Harris & Sukoneck, attorneys for respondent

(Ira Sukoneck, on the brief).

PER CURIAM

Petitioner Kenia Sethman appeals from a March 18, 2008 judgment of the Division of Workers' Compensation, following trial, dismissing her claim petition because she failed to prove the underlying accident was work-related. We affirm.

The relevant facts may be briefly stated. On February 7, 2003, after exiting her car and stepping onto the sidewalk of the office complex in Iselin where Metropolitan Life Insurance Company (MetLife) rented space, petitioner slipped and fell on ice, injuring herself. At the time of the accident, petitioner had been employed by respondent Adecco Employment (Adecco), a temporary placement agency, which had assigned her to work in MetLife's customer service department approximately four months prior to the incident. According to petitioner, before commencing this assignment, "Stephanie" from Adecco, after speaking with "Beatrice" from MetLife, instructed her to park on the side of the building where MetLife was located. As a result, petitioner parked in this area on a daily basis, including the day of the accident, where she supposedly observed only twelve parking spaces, although MetLife occupied at least two floors of the five-story building in the office complex.

Beatrice Mills, a nine-year employee of MetLife at the time, gave an entirely different account. She had no recollection of any conversation with "Stephanie" from Adecco, and would never have had any conversation about where to park because MetLife did not have assigned or preferred parking for its employees. Rather, there were perhaps at least 100 parking spaces, and MetLife employees would park on the sides, front or back of the building, depending on availability of space, and presumably which of two entrances the employees chose to use. Even petitioner acknowledged there were no signs in the parking lot directing employees where to park or designating certain spaces for use only by MetLife employees.

At the close of evidence, the Workers' Compensation judge, crediting Mills' testimony over that of petitioner's, which she characterized as inconsistent and implausible, found petitioner's injuries were not the result of a compensable incident and therefore dismissed the claim petition.

On appeal, petitioner raises the following issues:

I. THE LOWER COURT ERRED IN FAILING TO STATE, WITH SPECIFICITY, THE BASIS FOR THE DISMISSAL OF PETITIONER'S CAUSE OF ACTION.

II. APPELLATE REVIEW OF THE LOWER COURT'S DECISION IS NECESSARY DUE TO THE FACT THAT THE COURT'S FINDINGS ARE NOT SUPPORTED BY THE RECORD AND THE LAW, ARE ARBITRARY AND CAPRICIOUS AND PETITIONER HAS SUSTAINED HER BURDEN OF PROOF.

A. The Lower court's decision is

sparse not supported by the record, and the lower court due to its failure to draw a negative inference substantially prejudiced Petitioner. Thus, appellate review and remand is necessary due to the facts of the case.

B. The trial court erred in believing Ms. Mills' testimony based upon she "had nothing to gain from her testimony."

III. PETITIONER'S INJURY OCCURRED DURING THE COURSE OF HER EMPLOYMENT, THERFORE, THE COURT ERRED IN DISMISSING PETITIONER'S CAUSE OF ACTION AGAINST THE RESPONDENT.

We deem none of these issues of sufficient merit to warrant extended discussion in this opinion, Rule 2:11-3(e)(1)(A) and (E), and accordingly we affirm for the reasons stated in the compensation judge's oral opinion of March 18, 2003. We add only the following comments.

When reviewing a compensation judge's decision, we consider "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record after giving due weight to the judge's expertise in the field and his opportunity to hear and observe the witnesses." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We especially defer to those factual findings based on the judge's credibility determinations, since they are "often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). So viewed, we are satisfied that the compensation judge's decision was based upon her observations of the witnesses and her assessment of their credibility as well as the evidence. And the evidence supporting non-compensability was both substantial and credible.

The premises rule provides that an injury sustained by an employee is only compensable if the injury occurred "going to or coming from work . . . and in the course of employment if the injury takes place on the employer's premises." Brower v. ICT Group, 164 N.J. 367, 371 (2000) (citing Cressey v. Campus Chefs, Div. of CVI Serv., Inc., 204 N.J. Super. 337, 342-43 (App. Div. 1985)). This rule limits recovery of injuries to those sustained within the physical confines of the employer's premises. Brower, supra, 164 N.J. at 371.

In the 1979 amendments to the Workers' Compensation Act, L. 1979, c. 283, the Legislature provided 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. 35:15-36 (emphasis added). In applying the term "control" in the wake of the 1979 legislative amendment, the Supreme Court held that an employee injured in a far corner of a mall's parking lot neither owned nor maintained by his employer, but in which he was required to park pursuant to the employer's directive, was injured at his "employer's place of employment" within the meaning of the workers' compensation statute and therefore his injuries were compensable. Livingstone v. Abraham & Straus, Inc., 111 N.J. 89, 104-06 (1988).

Here, the singular issue to be decided by the compensation judge was whether petitioner was injured "in the course of employment," namely, whether the area of the parking lot where she slipped and fell may be considered as having been under the control of respondent within the meaning of N.J.S.A. 34:15-36. Clearly, it was not. There was no evidence that respondent owned, maintained or even used the area for employee parking, and, unlike Livingstone, the credible proof here is that neither respondent nor MetLife designated or assigned parking spots to their employees or in any manner directed them to park in certain locations, much less the particular area proximate to petitioner's fall. As such, petitioner was not in the "course of her employment" when she fell, and her resultant injury was, therefore, not compensable.

Finally, in reaching this conclusion, the compensation judge did not err in declining to draw an adverse inference from respondent's failure to produce "Stephanie." In the first place, there is no competent proof that her testimony would be admissible, or "would serve to elucidate [a] fact[] in issue," Bender v. Adelson, 187 N.J. 411, 435 (2006), or "would have been superior to that already utilized in respect to the fact to be proved." State v. Clawans, 38 N.J. 162, 171 (1962). Equally absent is any proof that the so-called missing witness "was available and within [respondent's] power to produce," Bender, supra, 187 N.J. at 435; Clawans, supra, 38 N.J. at 171, or, conversely, that she was not equally available to both parties. Clawans, supra, 38 N.J. at 171. Under these circumstance, then, it was not error for the compensation judge to decline to draw an adverse inference from "Stephanie's" non-appearance.

Affirmed.

(continued)

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A-4020-07T3

March 19, 2009