Newly sworn Justice Faustino Fernandez-Vina heard arguments Tuesday in a case at the New Jersey Supreme Court that explores the limits of workers’ compensation for injuries suffered by employees on their way to the office.
At issue in Hersh v. County of Morris is the benefits eligibility of a county employee struck by a car on Jan. 29, 2010, while crossing a street from a private parking garage where the county leased spaces.
The question is whether the parking lot—and by extension the two-block jaunt to the county administration building—could be considered under the control of the employer, as is required by a 1979 amendment to the Workers’ Compensation Act, N.J.S.A. 34:15-36.
A workers’ comp judge and the Appellate Division answered yes and found the accident compensable.
But the county’s attorney said those judges used too expansive a definition of employer control of premises.
Even though Cheryl Hersh was assigned free parking in the garage on Cattano Avenue, “there was no requirement or mandate that she park there,” said John Tort Jr. of Edison’s Leitner, Tort, DeFazio, Leitner & Brause. “The accident occurred on a public roadway. Ms. Hersh had not arrived at her place of employment and was not in the control of her employer.”
Fernandez-Vina jumped right into the fracas, scoring an admission from Tort that Hersh did not have enough seniority to park at a county-owned facility adjacent to the administration building. “She had to be in the street,” the justice said.
“Correct,” Tort replied. “But she was no different than anyone else walking to work. She was in the same position as someone getting off a bus. She was commuting to work. She was not at work.”
Justice Barry Albin suggested that Hersh had arrived at work when she parked her car.
“I dispute that,” Tort said.
Hersh’s lawyer, Lewis Stein, urged the court to follow its ruling, in Livingston v. Abraham & Straus, 111 N.J. 89 (1988), that an employee injured in an employer-owned parking lot was eligible for workers’ comp because the employer controlled the lot and told the employee where in the lot to park.
Hersh was told that if she wanted free parking, she had to park in the Cattano Avenue garage, said Stein, of Nussbaum, Stein, Goldstein, Bronstein & Kron in Succasunna.
Chief Justice Stuart Rabner asked, if accidents on public streets are compensable, what is left to be excluded?
Stein said this case is a “classic example” of the coming-and-going rule. The employee chooses how to commute to work, but once the employer provides a place to park, “it becomes the employer’s decision,” he said.
Justice Anne Patterson posited that it could be considered a stretch to state that Hersh had arrived at work merely by parking her car and crossing the street.
Stein disagreed. “The county was controlling the employee,” he said.
Fernandez-Vina also sat for a case argued earlier in the day, In the Matter of the Civil Commitment of D.Y., which may decide whether sex offenders facing civil commitment under the Sexually Violent Predator Act have a constitutional right to represent themselves.
His first questions from the bench were to the defendant’s lawyer, Assistant Deputy Public Defender Lewis Sengstacke. Fernandez-Vina asked whether judges should follow the same analysis used when a defendant in a criminal case asserts the right to represent himself or herself, and whether a competency analysis should be performed before the commitment hearing begins. To both questions, Sengstacke answered yes. ■