A recent Supreme Court decision reflects our position and strengthens the defense that injuries while commuting to work are not compensable. In Hersch v. County of Morris (decided April 1, 2014), a published New Jersey Supreme Court decision, the Court found that accidents that occur in public places, not under the control of an employer, are not covered by workers' compensation. This is a reversal of the Appellate Court decision that our office has reported on over the past year expressing our disagreement with both the decision and the reasoning.
In this case, the petitioner was struck by a car while crossing a public street between the parking garage and her office. The petitioner was not permitted to park in the employer's county owned parking lot, but was given permission to park in one of the employer rented spots at a parking garage two blocks from her office. She was given a scan card so she could enter the garage and she was instructed to park on the third level.
The respondent denied the claim taking the position that the employee was outside the sphere of employment. Following a trial, the workers compensation judge held that the accident occurred during the course of her employment because her employment began and her commute ended when she arrived at her employer controlled parking lot. The Appellate Division affirmed.
The Supreme Court of New Jersey reversed the decision holding that the employer did not control the route the employee took and therefore, was not compensable.It noted 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 where the accident occurred? The Court noted that the employer did not own, control or maintain the parking garage. The employer merely rented some spaces. It also derived no direct business interest from providing the parking spaces which differentiated the case from other decisions where the employer was able to provide parking closer to its business for customers. The County did not dictate which path Hersh had to take to arrive at her place of employment as opposed to prior decisions where ingress and egress to work was limited.
The decision in Hersch makes clear that public places that are not under the control of the employer are not considered part of the employer’s premises for purposes of workers’ compensation benefits, even if the employer does provide parking for its employees off premises. The amendments to the statute (and section 36) in 1979 were referenced here and the emphasis on limiting compensability for off premises injuries was relied upon by the Court.