MICHELLE GIORDANO v. HIGH POINT INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE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 only binding 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-4971-14T3 MICHELLE GIORDANO,

Petitioner-Respondent,

v.

HIGH POINT INSURANCE COMPANY,

Respondent-Appellant,

and

BLUE CROSS BLUE SHIELD OF

MASSACHUSETTS,

Respondent/Intervenor-

Respondent.

____________________________________________

October 11, 2016

 

Argued September 27, 2016 Decided

Before Judges Yannotti and Fasciale.

On appeal from New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2011-13853.

Glenn A. Savarese argued the cause for appellant (Braff, Harris, Sukoneck & Maloof, attorneys; Mr. Savarese, on the brief).

Brian T. Wilton argued the cause for respondent Michelle Giordano (The Wilton Law Firm, P.C., attorneys; Mr. Wilton, on the brief).

Gibson & Sharps, attorneys for respondent Blue Cross Blue Shield of Massachusetts, join in the brief of respondent Michelle Giordano.

PER CURIAM

Respondent High Point Insurance Company (High Point) appeals from a June 10, 2015 order entered by a judge of compensation concluding that petitioner Michelle Giordano (Giordano) suffered a compensable injury. We affirm.

On December 6, 2010, Giordano worked for High Point. That day, Giordano went to work and parked her car in a parking lot adjacent to a multi-tenant office building. After she parked, she fell in the lot on twigs and other debris on her way to the building in which High Point had its offices. She sustained injuries to her right shoulder.

High Point gave Giordano and its employees access to the parking lot. High Point had leased the space in the parking lot from the landlord. Pursuant to the lease, High Point had ten assignable parking spots but it actually assigned twenty-two parking spots to its directors, management, and employees who won awards. Other tenants in the building also assigned and marked spots in the parking lot which were not available for other High Point employees. As part of the lease, High Point was partially responsible for maintenance costs of the parking lot.

Giordano testified that High Point instructed other employees, including herself, to park in the spots that were "not marked." If employees parked in a marked spot, a security officer would place a sticker on the car and a human resources representative would ask that it be moved. The administrative operations and facilities supervisor for High Point testified that High Point would enforce the marked parking spots in the parking lot. At the time of Giordano's injury, employees could use three doors to enter the building. Giordano also testified that there was no on-street or other off-street parking for a mile.

The judge of compensation found Giordano's injury was compensable. In his written opinion, the judge of compensation stated

Here, the court finds [High Point] had control of the parking lot. In a common sense approach, [High Point] had a certain number of designated spots, four additional spots, where certain individuals were instructed to park, and on occasion may designate additional spots of meeting attendees. . . . Here, [High Point's] exercise of control over some of the parking lot, as a logical corollary, is in fact control of the lot because [High Point] instructed employees where not to park, as well [as] where to park. Here, there are no public streets, and while [High Point] may be deemed as having joint control, in the [analysis] of the case law, that constitutes a sufficient "degree of control", compared to "no control" which the Supreme Court discussed in [Hersh v. Cty. of Morris, 217 N.J. 236, 244 (2014)] compelled the trial court to find the within accident compensable.

The judge of compensation found that Giordano was entitled to fifteen percent permanent partial disability, a finding that High Point does not dispute on appeal. He also found that High Point was responsible for a Blue Cross Blue Shield of Massachusetts (Blue Cross) medical lien.

On appeal, High Point argues that the judge of compensation erred by concluding Giordano suffered from a compensable claim.

This court generally gives "substantial deference" to agency determinations. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (citations omitted). "In workers' compensation cases, the scope of appellate review is limited to 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). This court must defer to the judge of compensation's factual findings and legal determinations unless they are "manifestly unsupported by or inconsistent with competent[,] relevant and reasonably credible evidence as to offend the interests of justice." Lindquist, supra, 175 N.J. at 262 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)).

This court will not substitute its judgment for that of the judge of compensation, even if it would reach a different result when considering the facts anew. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000); see also Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996) (stating that the appellate review should consider whether the judge of compensation's decision "could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole, giving due regard to his expertise in the field of workers' compensation and his opportunity of seeing the witnesses and evaluating their credibility").

However,where the focus of the dispute is not on credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, our function broadens somewhat. Where our review of the record "leaves us with the definite conviction that the judge went so wide of the mark that a mistake must have been made," we may "appraise the record as if we were deciding the matter at inception and make our own findings and conclusions."

 
[Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.)(quoting C.B. Snyder Realty v. BMW of N. Amer., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)), certif. denied, 122 N.J. 372 (1990).]

We conclude Giordano suffered a compensable injury and is entitled to workers' compensation benefits because she was injured in the course of employment in an employer-controlled parking lot.

Under the New Jersey's Workers' Compensation Act (the Act),1 employees have a right to workers' compensation benefits if they were acting in the course of their employment at the time the injury occurred. N.J.S.A. 34:15-7. The law previously provided that an injury sustained during routine travel to and from work was not compensable (the "going and coming rule"), but there were many exceptions to the rule and the Legislature decided to amend the statute in 1979. See White v. Atl. City Press, 64 N.J. 128, 134 (1973) (citation omitted) (stating "exceptions to the rule have been so numerous that they have almost swallowed the rule"); see also Hersh v. Cty. of Morris, supra, 217 N.J. 236, 244 (2014) (discussing the 1979 amendment). Accordingly, the going and coming rule evolved to the premises rule. Hersh, supra, 217 N.J. at 244. The statute currently defines employment as beginning "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.

"[T]he 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." Hersh, supra, 217 N.J. at 244 (quoting Kristiansen v. Morgan, 153 N.J. 298, 316-17 (1998)). If an employer has control over the area but does not own the area, employee injuries can still be compensable under the premises rule. Hersh, supra, 217 N.J. at 245.

The Court has addressed the premises rule in other cases. In Livingstone, the Court found that employee injuries sustained walking from an employee parking area in a mall parking lot are compensable. Livingstone v. Abraham & Straus, Inc., 111 N.J. 89, 90 (1988). The Court noted that the employer required employees to park in the far part of the parking lot so that customers could park closer to the employer's place of business and thus that designated employee parking area was "entirely for its benefit." Id. at 91. Furthermore, the Court noted that requiring the employees to park far away in the parking lot exposed them to an "added hazard." Id. at 105-06. The Court stated that "lots owned, maintained, or used by employers for employee parking are part of the employer's premises" for purposes of the premises rule. Id. at 102; but see Novis v. Rosenbluth Travel, 138 N.J. 92 (1994) (holding that an employee who slipped on the sidewalk between the parking lot and office building did not have a compensable injury because the employer did not control the lot).

We have also discussed the issue of control when applying the premises rule. In Bradley, we addressed the issue of employer-provided parking garages and employer control over ingress and egress routes. Bradley v. State, 344 N.J. Super. 568 (App. Div. 2001). In Bradley, the court stated, "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 (emphasis omitted) (quoting Brower v. ICT Group, 164 N.J. 367, 373 (2000)). The court noted the employer gave the employees parking in specific designated sections of the parking garage, even though they were not reserved spots. Bradley, supra, 344 N.J. Super. at 579. The employer had 350 out of 600 permits to park in the garage. Ibid. The court found the employer exercised sufficient control over the areas so that the injuries were compensable even though "the situs here were not actually owned, maintained or exclusively used by the [employer]." Id. at 580.

Hersh further clarified employer control under the premises rule, holding that an employee injured walking two blocks between her employer-provided parking garage and her office building would not be compensated under the Act. Hersh, supra, 217 N.J. at 238. The Court found that 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. Ibid. The Court stated the employer in Hersh "only rented a small portion of the spots in the lot," did "not own[] or maintain[]" the garage, "derived no direct business interest from paying for employees to park in the [garage]," did not control the public street the injury occurred on, did not add "any special or additional hazards" to the employee's ingress or egress to work, and did not control the employee's ingress or egress route. Id. at 249-50.

Here, there are sufficient credible facts to show that High Point had control over the parking lot to find Giordano's injury compensable. High Point leased parking area in the parking lot from the landlord for its employees and invitees. Per the lease, High Point was responsible for a portion of the operating expenses. This type of control did not exist in Hersh. Hersh, supra, 217 N.J. at 249. Unlike Hersh, the injury here did not occur on a public street where the employer had no control. Rather, the injury occurred in a parking lot which High Point was partly responsible to maintain.

Although High Point here did not add any special hazards by having employees park in the lot, it did control where employees parked by directing them to park in the spots that "were not marked." Giordano testified and High Point's representative confirmed that High Point would enforce the assigned spots. Because there was no on or off-street parking available for over a mile, High Point did control the ingress and egress to work by providing employer parking and directing employees where to park. The fact that there were three available doors for employees to use should not change this analysis. Because High Point had control over the parking lot here, the injury is compensable under the premises rule.

H

igh Point also argues that the compensation judge erred by finding that it is liable for the Blue Cross lien. This argument is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 N.J.S.A. 34:15-1 to -142.