Skip to Content

COVID-19 Update: MSZL&M to remain in operation as normal during this time. Read More      Close

COVID-19 Update: MSZL&M to remain in operation as normal during this time. Read More      Close

New Jersey Supreme Court Denies Workers Compensation Benefits to an Employee for an Accident on Public Street While Coming to Work, Signaling Change in “coming and Going” Analysis.

Apr 1, 2014 - Industry News by Jason G. Wehrle

(Trenton, NJ April 1, 2014)-  The New Jersey Supreme Court recently held that whether workers compensation benefits are payable depends upon an detailed analysis of the location of the accident and the degree of control by the employer, and not just simply whether the claimant was “coming or going” to work.   

In Hersh v. County of Morris, the Supreme Court found since there was an absence of control by the employer where the accident occurred, the petitioner was not entitled to workers compensation benefits, despite that the accident occurred on her way to work.    The case stems from a 2010 accident where the petitioner parked in a private garage (two blocks from employer) and exited the building.  As she was crossing a public street, when she was struck by a car and seriously injured. A claim petition was filed pursuant to NJSA 34-15:36.  The judge found that  after a  review of the facts that the county-provided parking spaces were part of the employers premises. This allowed the court to find the petitioner was on the job while walking to a different location when she was hit by a vehicle.  The Appellate Division Affirmed.

In reversing, the Supreme Court  looked closely at the ‘premises’ rule under NJSA 34:15-36 which defines when ’employment’ begins and ends. The question posed in this claim is a determination of when this employee arrives at the employers place of business. But this rule also excludes areas (coming and going from work) that are not under the control of the employer. This involves a two prong test of the facts.  We look to the location of the injury and wether the employer has control of the property on which the accident occurred.

The Supreme court discussed the Garage as private and the petitioner was available to use any of the designated parking spots on the third floor. The petitioner was not required to park in this lot and the direction in which she walked towards the employment was voluntary.  Moreover, the county did not own, control or maintain the garage. It only rented a small portion of the spaces.  The accident did not occur in the garage, but on a public street not under county control. As a result the Court holds that an employee who is injured on a public street, not controlled by the employer, is not entitled to compensation under NJSA 34:15-36.

It appears that the court in this matter may have considered other facts that are not spelled out in this decision. For instance, the petitioner should have heath coverage from her PIP carrier and could still file a third party suit for pain and suffering against the motor vehicle in Superior Court.

This Supreme court ruling will now allow employers to argue that an employer’s control over a premises will need to be more apparent and also derive some benefit to the employer for an injury to be a compensable one. Courts will also need to evaluate to the location of the injury and if the area is available and used by the general public.