CP# 06-20236 Fermin v. Silva’s Welding & Mechanical Services
AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
SILVA’S WELDING & MECHANICAL SERVICES
CLAIM PETITION NO.: 2006-20326
DISTRICT OFFICE: Jersey City
DECISION ON COMPENSABILITY
The instant matter comes before the Court for a determination on the issue of whether or not Petitioner’s injury is compensable, as contemplated by the New Jersey Workers’ Compensation Act, N.J.S.A. 34:15-1 et seq., and therefore whether or not petitioner is entitled to benefits consequent thereto. For the reasons set forth below, this Court determines that the injury suffered by the Petitioner did not arise out of and in the course of her employment and consequently she is not entitled to benefits afforded under the Act and her Claim Petition must be dismissed.
Petitioner filed a claim petition, CP 2006-20326, on July 21, 2006, which alleges a compensable injury to her right ankle which occurred when she was ”struck by a cyclist while on Respondent’s property leaving work.” On August 8, 2006 the Respondent filed an Answer admitting the Petitioner was “in employment” on the date in question but denying the injury “arose out of and in the course of employment.” The parties were unable to come to agreement concerning compensability. Ultimately agreement was reached to bifurcate the trial in this matter to present testimony and other proofs as to compensability and submit to the Court the determination on that issue as to both law and facts.
The bifurcated trial on the issue of compensability was commenced on April 12, 2007.
The parties stipulated that the petitioner was employed by the Respondent, as a secretary/clerk-typist, on January 3, 2006 and that she suffered an injury on that date. They stipulated further that she was paid at a rate of $400 gross weekly and that her work day had ended and she had ”clocked out” prior to the occurrence of the accident resulting in the injury at issue here.
Admitted into evidence as “P-1” was a photograph showing the front of the Respondent’s building upon which the Petitioner placed an “x” to show the location where she asserts that her injury occurred.
Admitted into evidence as “P-2” were the medical records of Dr. Granatir reporting on an examination of the Petitioner on January 4, 2006. Dr. Granatir reports that
large bruises are noted above the lateral left mid thigh and lateral right distal thigh. These are soft tissue in nature only.
Minor abrasion is noted above the pisiform right wrist with full motion and no pain or swelling. …X-ray right ankle brought with patient revels a plafond fracture with two large displaced fragments, one anterolateral tibia and the other postero medial malleolus.
Admitted into evidence as “R-1” was a photograph of the front of the Respondent’s premises from directly across the street facing the front entryway.
Admitted into evidence as “R-2” was a photograph of the front of the Respondent’s premises looking down Midland Avenue toward the corner of Forest Street. Respondent’s witness Paul Justiniano placed an “x” thereon to indicate where he alleges the Petiioner was when he came to her assistance.
Admitted into evidence as “R-3” was a photograph of the front of the Respondent’s premises, from the same perspective as “R-1” but somewhat further away.
Admitted into evidence as “R-4” is an aerial map of the area of the Petitioner’s home and indicating the specific location thereof.
Admitted into evidence as “R-5” is an aerial map of the area of the respondent’s premises and indicating the specific location thereof.
Admitted into evidence as “R-6” is a “Kearny Police Medical Assistance Report” for the incident at issue noting “Victim stated she was walking along Midland Ave. when she collided with a young child riding a bike.”
Admitted into evidence as “R-7” is a Kearny Police “Supplementary Investigation report” wherein the officer notes “I spoke with the victim, Rocio Fermin, who stated she was accidentally struck in the right leg by a juvenile riding a bicycle on the sidewalk along Midland Avenue.”
Admitted into evidence as “R-8” was a “Kearny Emergency Medical Service Report” for the incident at issue.
The first witness presented was the Petitioner, who testified that she had been employed by the Respondent for about three weeks as a temporary clerk-typist “for the holidays.” He said she was leaving work around five o’clock when she was struck by a boy driving a bicycle. She stated that she had not yet reached the sidewalk when the bicycle approached from her left and struck her left side, knocking her over. She went on to relate that shortly thereafter, while she was still on the ground, “Paul the owner” came out of the building to help her. She testified that she had place an “x” on the photograph marked as “P-1” to show where the accident took place.
On cross examination the Petitioner asserted that the “x” showed “precisely” where she was struck by the bicycle. She was then shown a photograph of the premises marked as “R-1” and asked to identify a black truck shown therein parked to the right of the front entrance to the premises. She identified the truck as belonging to the owner Paul and confirmed that he always parked at that location. After confirming that the three photographs submitted by Respondent accurately depicted the premises she conceded that the black truck was in the position shown in those photographs at the time of her accident. She also indicated that the bicycle did not come straight up the sidewalk but rather cut across the parking lot from the side street, Forest. Upon further questioning she said “he made a triangle because if he would have gone on the sidewalk, he would never have hit me because I would have seen the kid because I was coming out.”
She was then asked where she was going from work and replied “I was going home…I was going to get my car, which is parked at my house because it was like a block away.” She confirmed that her address was 205 Midland Avenue and its location as compared to the employer’s premises at 185 Midland Avenue and the two locations as shown on aerial maps marked as “R-4” and R-5” and their close proximity. When shown police reports of the incident, marked as “R-6” and “R-7,” she conceded that she “probably did say that [she was struck on the sidewalk]…but I wasn’t.” She further asserted that she did not move from the spot where she fell before the owner and others came out to help her.
Respondent presented as a witness Paul Justiniano, who asserted that he is the owner of Respondent Silva’s Mechanical Services. He testified that he was in his office shortly after five talking with “Manny” who left and immediately returned and told him that Rocio got hurt and was on the sidewalk. He said he went outside and saw her on the sidewalk behind his truck. Upon instruction he placed an “x” on Exhibit “R-2” to show the spot where he first saw the Petitioner. He said she was sitting on the ground and he and Manny lifted her up into his truck so she sat in the driver seat. He testified that Petitioner told him
That a kid on the bike came across the property from Forest Street and somehow they got together behind my truck and on the sidewalk.
The respondent next presented witness Manuel Araujo, who testified that he went to Silva’s Mechanical Services shortly before five to pick up a check. He stated that he stayed a few minutes and that when he left the building he found the Petitioner “laying on the sidewalk.” He confirmed that he alerted Paul Justiniano to the situation. Upon being shown the “x” marked on “R-2” he confirmed that Petitioner was “exactly by the X” when he first saw her “sitting down with her hands on the sidewalk.” He said that he spoke to the bicycle rider, who he observed to be 9 or 10 years old. He confirmed assisting Paul Justiano in lifting the Petitioner into the truck and placing her in the driver’s seat.
The overwhelming weight of the evidence presented indicates the Petitioner was on the public sidewalk proceeding toward her home on Midland Avenue, when she was struck by a bicycle driven by a child who had “cut across” the parking area in front of the Respondent’s premises. The only evidence pointing to a different conclusion is the testimony of the Petitioner, who claims she was still in the Respondent’s parking area and not yet on the sidewalk when she was struck. Unfortunately, even her own description of the incident, with the child making a “triangle” from Forest Street, contradicts that assertion. Simply and succinctly, Petitioner was not a credible witness and was not truthful when she asserted the location of the collision. I find that the collision between the Petitioner and the bicycle took place on the sidewalk while she was proceeding toward her home after the end of the work day.
Respondent relies upon N.J.S.A. 34:15-36, which provides:
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; provided, however, when the employee is required by the employer to be away from the employer's place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer;
Respondent correctly notes that the cited provision was part of a reformation of New Jersey’s Workers Compensation system, so as “to restrict compensation in cases involving a person’s routine travel to and from work.” Respondent relies upon Novis v Rosenbluth Travel, 138 N.J. 92 (1994) and Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342 (App. Div. 1999) to support the contention that “injuries on sidewalks incurred by petitioners going to or coming from work are non-compensable.”
Petitioner relies upon Brock v PSE&G Co., 149 N.J. 378 (1997) to argue that there is a “judicial mandate to construe the workers’ compensation laws liberally in favor of the employee.” Petitioner acknowledges the holdings of Novis and Cannuscio but argues that the “special hazard exception” articulated in Cressey v. Campus Chefs, 204 N.J. Super. 337 (App. Div. 1985) is applicable to the instant circumstances. Petitioner submits as supportive of that argument the New Jersey case of Brower v. ICT Group, 164 N.J. 367 (2000) and three cases from foreign jurisdictions, ITT Continental Baking Co. v. Schneider, 621 P.3rd 1294 (Ct.App. Wash.1980) from the state of Washington; Guzman v. Victor Machinery Exchange, 402 N.Y.S. 2d 237 (1978) from the state of New York; and Nelson v. St. Paul, 81 N.W.2d 272 (1957) from the state of Minnesota. The Petitioner’s argument is that the location of the truck belonging to the owner of the Respondent’s business, together with the youthful bicycle driver crossing the property constituted “special hazards” sufficient to bring this injury into the ambit of workers’ compensation.
This court is mindful of Professor Larson’s assertion that:
The real reason for the premises rule is, and always has been, the impracticality of drawing another line at such a point that the administrative and judicial burden of interpreting and applying the rule would not be unmanageable. Arthur Larson, The Law of Workmen's Compensation § 13.01  (b) (2007)
The legislative history is eminently clear, and shows that the New Jersey Legislature enacted amendments to the Workers Compensation in 1979 for the specific purpose of correcting excesses, including the expansion of the going and coming rule, the hazards of which are so articulately described by Professor Larson in his treatise. See “The Abortive Michigan-New Jersey Extension,”Arthur Larson, The Law of Workmen’s Compensation, § 13.01  (b) (2007). The essential point is that there must be a demarcation between the risks covered by workers compensation and the risks of daily living, which do not come under that protection. Without such a demarcation all injuries incurred by a working citizen are potentially addressed under workers compensation, a result clearly not intended and certainly economically disastrous.
The cases relied upon by the Petitioner, to argue that this matter warrants a “special hazard” exception to the going and coming rule, are readily distinguishable from the instant circumstances. The Washington case involved a piece of bakery equipment which rolled onto the public sidewalk, causing the petitioner, an employee of the bakery business on his way to work, injury. Mindful of that “work” connection, the Court held that
when the source of the injury suffered by an employee while standing on a public sidewalk arises from the employer's business, the special hazard exception should apply, even though the risk is shared by those members of the general public merely passing by. ITT Continental Baking Co. v. Schneider, 621 P.3rd 1294, 1297 (Ct.App. Wash.1980)
The Minnesota case involved a teacher walking to the school premises, when she was struck by a ball batted by one of the schoolchildren playing in the school playground. The Minnesota Court also noted the work connection, holding that:
if the injury has its origin with a hazard or risk connected with the employment, and flows therefrom as a natural incident of the exposure occasioned by the nature of the work, it arises out of the employment. In the instant case the injury-producing hazard, the batting of a ball, as a part of the game activities sponsored by the school for the children on its playground, originated on the premises of the employer. Employee's duties included the supervision of the children's playground activities. Clearly, her injury arose out of the employment. Nelson v. St. Paul, 81 N.W.2d 272, 276 (1957)
In the first case the instrumentality of the injury, the bakery pan truck, emanated from the employer. In the second case the propulsion of the ball originated in the premises of the employer and the actor was a child under the charge of the employer. Neither circumstance is analogous to the member of the general public represented by the bicycle rider in the instant matter.
The New York case involved a bookkeeper who was injured during her lunch hour while crossing a loading dock utilized by the employer and other tenants of the building. The New York court affirmed a decision of the Compensation Board
that claimant was within the precincts of her employment and the truck dock was a hazard of her employment and the claimant sustained an accident arising out of and in the course of employment. Guzman v. Victor Machinery Exchange, 402 N.Y.S. 2d 237, 238 (1978)
That Court essentially found the employee to be on the employer’s premises, a circumstance not present here.
The New Jersey case involved an employee falling after the end of the work day while exiting the employer’s building via a rear stairway regularly utilized by employees when exiting the employer’s premises. The New Jersey Supreme Court found the injury to have occurred on the employer’s premises, noting that
The premises rule "limits recovery to injuries which occur on the employer's premises . . . by confining the term “course of employment' to the physical limits of the employer's premises." . Thus, unless one of the statutory exceptions not implicated here is triggered, an employee who is not physically on the employer's premises is not technically in the course of the employment. Brower v. ICT Group, 164 N.J. 367, 371 (2000)
Once again the Court extended the ambit of the employer’s “premises” to include the location of the injury. Such an extension would not be appropriate her, where the petitioner was clearly on the public sidewalk when the injury occurred.
More appropriately cited is a Michigan case where the Petitioner was in the act of reaching for the employer’s door, when he slipped on ice and fell, incurring injury. The Michigan Court refused to find compensability noting that the employee:
seeks to support the award on the ground that the accident had its origin in a risk connected with the employment. It is claimed that the employee fell because of "the combination of a slippery condition and the effort to enter the doorway which facts are inseparable and as one, whereby the act of entering not only was a causative danger different than that of a pedestrian but as well necessarily relates the accident to the employment." The argument is too frail a reed to support the award. The compensation law is to be construed liberally to provide indemnity for accidents peculiarly incidental to employment, but it was not intended to be health, accident and old age insurance and spread general protection over risks common to all and not arising out of and in the course of employment. The deceased was not by reason of his employment subjected to a peril of the street different in kind from that of any other pedestrian; his work had not yet begun within the meaning of the compensation act. Simpson v. Lee & Cady, 293 N.W. 718, 719 (1940).
The Michigan Court articulated the reason we must exercise caution in order to avoid arbitrarily expanding the coverage of workers’ compensation so that the employment context gets lost. There must be a line beyond which coverage cannot be extended and that line must be observed in order to protect the integrity of the system.
The instant matter presents neither a hazard emanating from the employment or the business of the employer, nor premises controlled in any manner by the employer. Without such a nexus to the employment there can be no compensability. There must come a point where an employee merges into the general populace and ceases to carry the mantle of employment and attendant compensation coverage. That point was certainly reached by the Petitioner here by the time she was on the public sidewalk making her way home. At that point she had the misfortune to incur an injury. Sympathy for the plight of the injured Petitioner cannot be cause for extending the ambit of coverage without due cause. That is precisely the “slippery slope” against which Professor Larson cautions and in reaction to which the legislature enacted the 1979 amendments. The circumstances presented here do not justify a determination that the Petitioners injuries arose out of and in the course of her employment. The simple and unfortunate fact is that they did not. The Claim Petition filed in this matter is therefore dismissed with prejudice. The Respondent shall pay Global Court Reporting the sum of $150 as costs of Court Reporting services for one day of trial.
KENNETH A. KOVALCIK, JWC