BEVERLY GOULD VS. CORIZON HEALTH OF NJ(NEW JERSEY DEPARTMENT OF LABOR, DIVISION OFWORKERS' COMPENSATION)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 7, 2017
• Docket: A-0438-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 binding only 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-0438-15T1

BEVERLY GOULD,

Petitioner-Respondent/ Cross-Appellant,

v.

CORIZON HEALTH OF NJ,

Respondent-Appellant/ Cross-Respondent.

____________________________________

Argued December 13, 2016 – Decided August 7, 2017

Before Judges Messano and Guadagno.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2013-1691.

Christopher M. Campanaro argued the cause for appellant/cross-respondent (Brown & Connery, LLP, attorneys; Michael Huber, on the briefs).

Scott D. Schulman argued the cause for respondent/cross-appellant (Petrillo & Goldberg, PC, attorneys; Jeffrey M. Thiel, on the brief). PER CURIAM

On August 11, 2015, a judge of compensation, entered an

order, finding that petitioner, Beverly Gould suffered a

compensable injury while in the employ of respondent, Corizon

Health of New Jersey (Corizon), and directing Corizon to provide

Gould with temporary disability benefits, medical treatment,

payment for medical bills incurred, and out-of-pocket expenses

for related medical care. Gould, a licensed professional nurse,

fell in a parking lot owned by Burlington County after

completing her shift at the County Correctional Work Release

Center (CWRC), in Pemberton. The judge determined that the

parking lot was part of Gould's workplace and her injury arose

out of and in the course of her employment with Corizon.

Corizon now appeals from that order, arguing that Gould's

injuries are not compensable under N.J.S.A. 34:15-36. Gould

cross-appeals maintaining the judge correctly determined that

her injuries arose in the course of her employment with Corizon.

Alternatively, if we find her injury is not compensable, Gould

claims she should be deemed a special employee of both

Burlington County and Corizon.

In 2005, Gould began working for Dr. Evans who had

contracted with Burlington County to provide medical services at

2 A-0438-15T1 the Mt. Holly Jail. In November 2010, Corizon was awarded the

inmate medical services contract for Burlington County jails and

hired Gould to continue to provide nursing services at Mt.

Holly. In February 2011, Corizon transferred Gould to the CWRC

in Pemberton.

The Pemberton CWRC was owned and operated by Burlington

County. The facility has only one parking lot available for its

employees, contractors, vendors, and visitors. A few spaces are

reserved for the warden, superintendent, and the handicapped,

with the remaining spaces available on a first-come, first-

served basis. The Burlington County Highway Department was

responsible for maintaining the parking lot.

On March 29, 2012, Gould had just completed her shift and

was walking to her car in the parking lot. In her testimony

before the judge of compensation, Gould explained how she fell:

I was walking and they had, not too long finished, it was like under construction to make like a handicap, lower the ground to make a handicapped accessible area, so we were walking through that and it's like, I tripped and because like it wasn't even, it was left all ragged, you know, but I didn't see that ahead of time and I tripped.

Gould fell, landing on her right knee. Three officers who

were with her helped Gould back to the facility where she was

evaluated by the nurse on call. Gould informed her supervisor,

3 A-0438-15T1 Maureen Haar, of her accident and sought authorization for

medical treatment. Haar advised Gould that she could not

receive workers' compensation and would have to see her own

doctor.

The following day, Gould saw her personal physician, Dr.

Dorfner who recommended she not return to work and referred her

to an orthopedist, Dr. Barr. Dr. Barr examined Gould on April

23, 2012, and diagnosed her with a sprain of the right knee. He

prescribed physical therapy and recommended that she not return

to work. Gould attempted to return to work on May 2, 2012, but

experienced leg and back pain. Gould returned to work on June

19, 2012, after she ran out of sick leave.

Gould filed a claim petition seeking workers' compensation

benefits from Corizon on January 22, 2013. After Corizon

opposed Gould's petition, she filed an amended petition adding

Burlington County as a named employer.

On January 29, 2013, an MRI revealed Gould suffered a torn

meniscus and partial tear of the anterior cruciate ligament.

After several injections to Gould's knee failed to provide

relief, Dr. Barr referred her to Dr. Paz, who recommend a total

right knee replacement.

In May or June 2013, Gould was notified by mail that she

had been terminated by Corizon. On September 22, 2014, Gould

4 A-0438-15T1 filed a motion for temporary disability benefits and coverage of

knee replacement surgery by Dr. Paz. Corizon and Burlington

County contested the matter and it was tried on three dates

between April and June 2015.

On August 11, 2015, the judge of compensation rendered an

oral decision. First, the judge found that Burlington County

was not a dual or special employer and dismissed it from the

case. Next, the judge analyzed N.J.S.A. 34:15-36, which

prohibits compensation for accidents occurring in areas outside

of the employer's control, and the "special mission" exception

to the "going and coming" rule which allows compensation if an

employee is

1. required to be away from the conventional place of employment;

2. if actually engaged in the direct performance of employment duties.

[Zelasko v. Refrigerated Food Express, 128 N.J. 329, 336 (1992).]

The judge determined that, because Gould's assignment

required her to occasionally travel to other facilities, the

first prong of the special mission test was satisfied. As to

the second prong, the judge found Gould

was an off site — off premises employee for Corizon working at the Pemberton jail. She tripped in the parking lot while walking to her car at the end of her shift, [Gould] was

5 A-0438-15T1 not commuting or engaging in any personal activities when she fell.

The judge concluded that Gould's fall in the parking lot

"arose out of and in the course of her off premises work at the

jail and that her injuries are compensable under the 'Special

Missions' exception to the premises rule."

On appeal, Corizon argues that Gould was not on a special

mission when she was injured; she had completed her work shift

at her regular place of employment, and was leaving the prison

facility. Corizon also argues that it did not own or control

the premises where Gould's injury occurred as the parking lot

was owned and maintained by Burlington County.

In a workers' compensation case, we must defer to the

factual findings and legal conclusions of the judge of

compensation as long as they "could reasonably have been reached

on sufficient credible evidence present in the record[.]"

Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262

(2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599

(1965)). However, legal questions "are not entitled to any

deference" and are subject to plenary review on appeal. Hersh v.

Cty. of Morris, 217 N.J. 236, 243 (2014).

The Workers' Compensation Act (WCA) requires employers to

compensate employees for injuries "arising out of and in the

6 A-0438-15T1 course of employment[.]" N.J.S.A. 34:15-7. Before 1979, the Act

did not define "employment." Over time, the "going and coming

rule" developed as a "judicially created doctrine which

ordinarily precludes the award of workers' compensation benefits

for accidental injuries sustained during routine travel to and

from an employee's regular place of work." Watson v. Nassau Inn,

74 N.J. 155, 158 (1977).

In 1979, the WCA was amended, defining "employment" more

restrictively, and eliminating many of the judicially-created

exceptions. See N.J.S.A. 34:15-36; Hersh, supra, 217 N.J. at

244. Those amendments defined when employment begins and ends:

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[.]

[N.J.S.A. 34:15-36.]

The 1979 amendments replaced the "going and coming rule"

with the "premises rule" which "is based on the notion that an

injury to an employee that happens 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." Kristiansen v. Morgan,

153 N.J. 298, 316 (1997) (citing Cressey v. Campus Chefs, Div.

of CVI Serv., Inc., 204 N.J. Super. 337, 342-43 (App. Div.

7 A-0438-15T1 1985)). The Legislature's use of the phrase "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." Ibid. The 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. Livingstone v. Abraham & Straus, Inc., 111

N.J. 89, 96-97 (1988).

Gould's accident occurred in a parking lot used by prison

and Corizon employees which was owned and maintained by

Burlington County. However, Burlington's ownership of the lot

is not dispositive, as Gould's injuries may be compensable if

Corizon exercised control over the parking lot. Hersh, supra,

217 N.J. at 245. Control exists when the employer owns,

maintains, or has exclusive use of the property. Livingstone,

supra, 111 N.J. at 104.

In Livingstone, employees of a store in a mall were

required to park in the far corner of the mall parking lot to

leave room for mall customers. Id. at 91. As the plaintiff-

employee was walking from her car to the employees' entrance,

she was struck by a car, sustained injuries, and sought

compensation. Ibid. A divided Court held that the plaintiff was

entitled to compensation because the store dictated that she had

8 A-0438-15T1 to park in a remote area of the parking lot and exposed her to

the added risk for the store's benefit and convenience. Id. at

105-06.

In other cases involving employees injured in a parking lot

while walking to or from their place of business, we have

focused on whether the employer required the employees to enter

or exit the employer's building by traversing the area where the

accident occurred.

Ehrlich v. Strawbridge & Clothier, 260 N.J. Super. 89, 90

(App. Div. 1992), certif. denied, 133 N.J. 435 (1993), involved

an employee who was injured when she fell on the sidewalk after

exiting a metal staircase designated by her employer for ingress

and egress. The staircase led to an exterior sidewalk that the

employee had to travel on in order to reach the parking lot

where her car was located. Ibid. We held the employee was

entitled to workers' compensation benefits, reasoning,

"[a]lthough the staircase and adjacent sidewalk leading from the

employee door was not a part of the store premises in a property

sense," the employer controlled the areas because it instructed

the employees which route to use to enter and exit the

employer's establishment. Id. at 92.

In Bradley v. State, 344 N.J. Super. 568 (App. Div. 2001),

we held that injuries sustained by state employees while

9 A-0438-15T1 traveling to work from a county-owned parking lot were

compensable because the employer's control over the parking lot

required each employee to follow a specific ingress and egress

route from the parking lot to the building, even though it was

not owned by the employer. Id. at 582. We held, "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 (citing Ramos v. M & F Fashions, 154 N.J. 583, 593-94

(1998)).

More recently, in Hersh, supra, the Court addressed

employer control under the premises rule, concluding that an

employee injured walking two blocks between her employer-

provided parking garage and her office building would not be

compensated under the WCA because 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. 217 N.J. at 238.

Unlike Hersh, Gould's injury did not occur on a public

street, where the employer had no control, but in the only

parking available for all jail visitors and employees. Although

there is no evidence that Gould was actually directed by Corizon

to park in the Pemberton lot, there was no other lot provided.

10 A-0438-15T1 Corizon's contract1 with Burlington County required the

presence of a medical professional at each jail facility on a

twenty-four hour basis. Lieutenant Matthew Leith, of the

Burlington County Corrections Department, testified the

Administrative Code imposed a similar requirement.2 The primary

duty of the nurse was to provide medical care for the male and

female inmates, but if a correction officer, outside vendor, or

a visitor to the jail was in need of treatment, the nurse would

provide care on a limited basis. Leith also testified that the

Pemberton CWRC had a daily medical call at 4:00 a.m., when

1 During the testimony, the terms "contract" and request for proposal or "RFP" were used interchangeably. 2 N.J.A.C. 10A:16-2.9(c) states:

the minimum requirements for a correctional facility infirmary shall include, but not be limited to:

1. A physician or advanced practice nurse on call 24 hours per day, seven days per week;

2. A Supervising Registered Nurse on site at least one shift within a 24-hour period, seven days per week;

3. All inmates being maintained within sight or sound of a medical staff person[.]

11 A-0438-15T1 diabetic inmates would have their blood checked before breakfast

and other inmates could have certain treatments.

After Gould was transferred from the Mt. Holly jail to the

Pemberton CWRC, she was assigned to work from 11:00 p.m. to 7:00

a.m. Gould would return once or twice a year to Mt. Holly for

meetings. When working at Pemberton, Gould's movements inside

the institution were restricted and she was accompanied by a

corrections officer whenever she saw an inmate in the clinic or

in a jail cell. She could not bring a cell phone into the

facility and if the nurse for the next shift did not show up in

time, she had to stay until her relief arrived.

Pictures introduced at the hearing indicate that the

parking lot is located immediately adjacent to the prison, is

enclosed by a fence, and is accessed by a long road through a

wooded area. Clearly, the lot is intended for the use of

employees and visitors to the prison and equally clear, they

have no alternative but to park in this lot.

Given the nature of Gould's employment at the Pemberton

CWRC requiring Corizon to provide medical services on a twenty-

four hour basis, the dedicated parking lot with restricted

access, we are satisfied that, like the plaintiff in

Livingstone, Gould's workday commenced when she arrived at the

parking lot in her car and ended after she left to drive home.

12 A-0438-15T1 Therefore, her injury occurred during the course of her

employment. See Livingstone, supra, 111 N.J. at 104. The fact

that Corizon "neither owned, maintained, nor had the right

exclusively to use this area of the lot, does not, in our view,

render her injuries noncompensable." Ibid.

As we are affirming the decision of the judge of

compensation that the jail parking lot was part of the premises

of the jail and Gould's workplace included the parking lot, we

need not address her conclusion that Gould's injuries were

compensable under the "special mission" exception.

Affirmed.

13 A-0438-15T1