(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 2, 1998 -- Decided July 13, 1998
HANDLER, J., writing for a majority of the Court.
In this appeal the Court considers whether an employee's injuries are compensable under the
Workers' Compensation Act ( Act), which turns on whether the accident occurred on the employer's
premises or whether it occurred beyond the employer's premises and, therefore, not compensable under the
premises liability rule of the Act.
In 1984, when he was forty-two years old, Felipe Ramos moved to New Jersey from Puerto Rico,
where he had lived since birth. While living in Puerto Rico, Ramos had worked in various agricultural
positions, including cutting sugar cane and picking coffee beans. At age eighteen, four of his fingers on his
left hand were amputated when Ramos was cutting grass with a machete to pick coffee beans.
Approximately one year after he moved to the continental United States, Ramos began to work at
M&F Fashions (M&F), a garment manufacturer, as a presser. M&F was one of two tenants located on the
fourth floor of a five-story building on Columbia Street in Newark. Stairs and a freight elevator comprised
the only two means of reaching M&F's fourth-floor factory. During the work day, Ramos rode the elevator
to bring fabric up from the ground floor to M&F's plant and to transport coats from the factory to the street
for loading. Although one other M&F employee used the elevator during the day in the course of work,
most of the other M&F employees did not ride the elevator, possibly out of fear for their safety as the
elevator doors would occasionally remain open during use.
M&F required Ramos to arrive at work at 8:00 a.m. Although he could not punch in for work
before 8:00 am., Ramos made it a habit to arrive at M&F at 7:00 a.m. every day. He did so because his bus
ride to work was short and because his salary would have been docked if he arrived later than 8:00 a.m.
When Ramos arrived at M&F, someone from another establishment would let him inside and he would go
upstairs, read the newspaper, drink coffee, and smoke a cigarette.
On May 13, 1988, Ramos arrived for work at 7:00 a.m. After he entered the building, he walked to
the elevator, the door of which was open eighteen inches wide. He opened the door an additional foot.
When he stepped into the elevator, he fell down the shaft and plunged between eight to ten feet.
Ramos suffered severe injuries, including a cerebral concussion, a fractured pelvis, a spinal sprain
and fracture, and a fracture of his left wrist, which required a surgical procedure in which bone from his hip
was grafted onto his wrist. Because of pain and lingering disabilities, Ramos has not worked since the
accident.
Ramos filed an action against the landlord, which was settled for $100,000. After paying his medical
bills and attorney's fees, he retained approximately $31, 000. He also filed a Worker's Compensation Claim.
Because M&F went out of business shortly after the accident, it did not defend against Ramos' claim.
However, the Second Injury Fund (SIF) opposed Ramos's application. At the hearings, two physicians
testified that Ramos is permanently totally disabled. Two physicians on behalf of the SIF expressed the
opinion that Ramos had a twelve-and-one-half-percent permanent partial orthopedic disability and ten-percent permanent partial neuropsychiatric disability.
On September 13, 1995, the compensation court concluded that Ramos's injuries were compensable; that the accident had occurred in the course of employment; and that he was permanently totally disabled. It ruled that the accident caused two-thirds of the total disability and apportioned one-third of the fault to the
SIF.
The Appellate Division reversed, finding that Ramos was not injured in the course of employment
and that his claim was barred by the going and coming rule because his injuries occurred in an area outside
of the employer's control. It specifically found that Ramos had not been required to use the elevator but
rather had chosen to do so; that M&F's use of the elevator did not equate with its control; and that the
elevator was a common area that many tenants used. The court further concluded that Ramos's injuries
were not compensable because the accident occurred an hour before the scheduled commencement of work.
The Supreme Court granted Ramos's petition for certification.
HELD: Because M&F had control over the elevator in which Ramos sustained injuries, the accident that
befell Ramos through his use of that elevator occurred on the employer's premises within the meaning of the
Workers' Compensation Act; credible evidence in the record supports the compensation court's finding that
Ramos was totally and permanently disabled as a result of the accident.
1. The premises rule, which excludes from compensation accidental injuries that occur beyond the employer's
premises, was designed to overcome the expansive exceptions to its application that occurred under the going-and-coming rule. (pp. 7-8)
2. In order for Ramos's injuries to be compensable, M&F must have controlled the elevator. Control as
defined in the Act differs from control in the formal property law sense, and when an employer uses a
common area for business purposes, the common area is, by virtue of that use, subject to the employer's
control and considered part of the employers' premises within the intendment of the Act. (pp. 8-9)
3. The fact that M&F did not have exclusive control of the elevator does not place it beyond M&F's
workplace premises. In this setting, the capacity to authorize use is the essence of control. (pp. 9-10)
4. The factual findings of the compensation court are entitled to substantial deference and sufficient credible
evidence in the record sustains that court's findings. (pp. 11-13)
5. Awards of permanent partial disability cannot be based on medical examinations performed shortly after
accidents and well before the hearing in the absence of recent objective medical evidence of continued
impairment. (pp. 13-14)
6. While the validity of a medical finding of a permanent injury may decrease with the passage of time, an older
medical examination is competent evidence of a permanent total disability if it was undertaken after permanency
occurred. (pp. 14-16)
7. Sufficient credible evidence supported the compensation court's finding that Ramos's disability was
permanent and total. (p. 16)
Judgment of the Appellate Division is REVERSED.
JUSTICE POLLOCK filed a separate dissenting opinion in which JUSTICE GARIBALDI joins. Justice
Pollock believed that the Appellate Division's conclusion that Ramos had not proved that M&F had exercised
control over the area where he was injured was more faithful to the legislative intent to exclude from coverage
injuries that occur while the employee is going to or coming from work.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN and COLEMAN join in JUSTICE
HANDLER's opinion. JUSTICE POLLOCK filed a separate dissenting opinion in which JUSTICE
GARIBALDI joins.
SUPREME COURT OF NEW JERSEY
A-
109 September Term 1997
FELIPE RAMOS,
Plaintiff-Appellant,
v.
M & F FASHIONS, INC.,
Respondent,
and
SECOND INJURY FUND,
Respondent-Respondent.
Argued March 2, 1998 -- Decided July 13, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
302 N.J. Super. 24 (1997).
Michael I. Murphy, Jr., argued the cause for
appellant (Freeman & Bass, attorneys).
Linda Schober, Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General of New Jersey,
attorney; Joseph L. Yannotti, Assistant
Attorney General, of counsel).
The opinion of the Court was delivered by
HANDLER, J.
In this case, a worker suffered injuries when he fell down the shaft of a freight elevator in the building in which his employer was a fourth-floor tenant. The principal issue is whether the employee's injuries are compensable under the
Workers' Compensation Act. Determination of that issue turns on
whether the accident occurred on the employer's premises or
whether it occurred beyond the employer's premises and,
therefore, was not a compensable accident occurring in the course
of employment under the premises rule of the Workers'
Compensation Act.
In 1984, when he was forty-two years old, Felipe Ramos moved to New Jersey from Puerto Rico, where he had lived since birth. In Puerto Rico, he had worked in sundry agricultural pursuits, including cutting sugar cane and picking coffee beans. When he was eighteen year old, as he was cutting grass so he could pick coffee beans, he severely injured his left hand with a machete. Four fingers on his hand were amputated below the first joint. Despite his incapacity, he continued to work in farming.
After he moved to the continental United States, Ramos lived with his brother, sister-in-law, nieces and nephews in Newark. Ramos could not find a job immediately after relocating to New Jersey. After approximately one year, M&F Fashions (M&F), a garment manufacturer, hired Ramos to be a presser.
M&F was one of two tenants located on the fourth floor of a five-story building at 50 Columbia Street in Newark. The building housed several employers, who rented portions of the building. Stairs and a freight elevator comprised the only two means of reaching M&F's fourth-floor factory.
Throughout his employment at M&F, Ramos earned $5.00 per
hour and worked forty hours each week. Ramos used a steam table
and lowered a press. He primarily used his left hand to perform
those duties. During the workday, Ramos rode the elevator to
bring fabric up from the ground floor to M&F's plant.
Furthermore, Ramos used the elevator to transport coats from the
factory to the street for loading. One other employee also used
the elevator during the day in the course of work.
Upon arriving for work, Ramos often took the elevator to get
to the fourth floor. Employees of the other fourth-floor tenant
also rode the elevator for passenger use, and other M&F employees
may have done the same. But, most workers and Ramos's
supervisors at M&F did not ride the elevator. Because the
elevator doors occasionally would remain open during use, Ramos
believed that they feared for their safety.
M&F required Ramos to arrive at work by 8:00 a.m., when an
owner would open the factory's door. Though his bus ride was
short and he could not punch in for work until 8:00, Ramos
typically arrived each workday at 7:00. His pay would have been
docked if he were late. When Ramos reached the building where he
worked, someone from another establishment would let him inside.
Then, Ramos would go upstairs, read the newspaper, drink coffee,
and smoke a cigarette. He would not socialize with other people.
Other M&F employees would begin to arrive at 7:30.
Ramos's superiors were aware of his habit of arriving early.
One told him that his punctuality made him the best employee.
On May 13, 1988, Ramos arrived for work at 7:00 a.m., and an
employee of another company opened the building door for him.
Ramos walked to the elevator, the door of which was open
eighteen-inches wide. He opened the door an additional foot.
When he stepped into the elevator, he fell down the shaft. He
plunged between eight to ten feet and was seriously injured.
Ramos was hospitalized in University Hospital for two weeks
in May and an additional four days in June, when he underwent
surgery. In the surgical procedure, doctors grafted bone from
Ramos's right hip onto his left wrist. Ramos's injuries included
a cerebral concussion, which caused him to lose consciousness, a
fractured pelvis, a spinal sprain and fracture, and the fracture
and fusion of his left wrist. Ramos continues to experience
sharp pain in his lower back and left hand, pain in his left
wrist, arm, and hip, headaches, and impotence. He can no longer
lift weights and run, as he had done once per week before the
accident. Psychologically, Ramos suffers from post-traumatic
stress disorder and depression. Because of the pain, Ramos has
not worked or applied for jobs since the accident.
Ramos filed an action against the landlord. As a result, he
obtained a $100,000 settlement. After paying his medical bills
and attorney's fees, he retained approximately $31,000.
Ramos filed a Worker's Compensation claim. M&F went out of
business shortly after the accident; accordingly, M&F did not
defend against Ramos's claim. Nonetheless, the Second Injury
Fund (SIF) has opposed Ramos's application for worker's
compensation benefits. In this case, hearings occurred on eight
days between November 9, 1994, and September 13, 1995.
Ramos testified as a witness. In addition, Ramos elicited
the testimony of Doctors I. Ahmad and Samuel L. Pollock, both of
whom diagnosed him in December 1990. They testified that Ramos
is permanently totally disabled. Two SIF expert witnesses,
Doctors Jack G. Siegel and David J. Flicker, expressed that Ramos
had a twelve-and-one-half-percent permanent partial orthopedic
disability and ten-percent permanent partial neuropsychiatric
disability, respectively.
On September 13, 1995, the compensation court concluded that
Ramos's injuries were compensable. The court determined that the
accident occurred in the course of employment because, in part,
Ramos was injured on an elevator used by M&F for business
purposes. The court also held that the mishap took place in the
course of employment though work was not scheduled to begin until
one hour after the accident. The court found credible Ramos's
explanation for his early arrivals and concluded that Ramos was,
indeed, reporting for work when he was injured. The court
determined that Ramos was permanently totally disabled. It ruled
that the accident caused two-thirds of the total disability.
Thus, the court apportioned two-thirds of the fault to M&F and
one-third to the SIF.
The Appellate Division reversed.
302 N.J. Super. 24 (1997).
The court held that Ramos was not injured in the course of
employment. Id. at 34. The court noted that, under the going
and coming rule, Ramos's injuries would be compensable only if
they occurred in an area under the employer's control. Id. at
30-31. According to the court, M&F did not direct Ramos to use
the elevator, and Ramos used the elevator as a matter of choice.
Id. at 31. M&F's use of the elevator does not equate with its
control, and the elevator was a common area that many tenants
used. Id. at 32-33.
The appellate court also found that Ramos's injuries were
not compensable because the accident occurred an hour before the
scheduled commencement of work. Id. at 34. The court recognized
that employment does not begin until an employee arrives at an
employer's place of business for work. Ibid. The court
determined that Ramos did not arrive for work; rather, he
appeared at the employer's building early in order to drink
coffee, read a newspaper, and smoke a cigarette. Ibid.
Because the Appellate Division concluded that Ramos's
injuries were not compensable, the court did not determine
whether Ramos's disability is permanent and total.
This Court granted Ramos's petition for certification.
151 N.J. 468 (1997).
The initial, sharp dispute in this case is over whether the accident transpired on M&F's premises. The SIF contends that Ramos injured himself in a common area that the employer did not control and, thus, the injury is not compensable. On the other
hand, Ramos asserts that common areas, such as an elevator, in an
employer's building should be deemed part of the employer's
premises. In the alternative, Ramos argues that M&F controlled
the elevator because it directed him and another employee to ride
the freight elevator to transport clothing and materials.
The premises rule distinguishes between an accident that
occurred on the employer's premises and one that did not.
N.J.S.A. 34:15-36. That rule, with two exceptions inapplicable
in this case, excludes from compensation accidental injuries that
occur beyond the employer's premises. The rule states:
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.
The premises rule was designed to overcome the expansive
exceptions to its application that occurred under the going-and-coming rule. "The `going and coming rule' that existed in
workers' compensation jurisprudence since the inception of the
Act was abrogated by the 1979 amendments to the Act."
Kristiansen v. Morgan, ___ N.J. ___, ___ (1998) (slip op. at 21);
see also Serrano v. Apple Container,
236 N.J. Super. 216, 221
(App. Div. 1989) ("[T]he `going and coming rule' has come and
gone."). "In its place, the Legislature established the premises
rule. That was accomplished by defining for the first time when
employment begins and ends." Kristiansen, supra, ___ N.J. at ___
(slip op. at 21).
"[A]s a general rule we interpret the statute as not
allowing compensation for accidents occurring in areas outside of
the employer's control." Zelasko v. Refrigerated Food Express,
128 N.J. 329, 336 (1992). However, under the language of the
premises rule, employment commences "when an employee arrives at
the employer's place of employment," and an accident that occurs
after the employee reaches an "area[] under the control of the
employer" may be compensable. N.J.S.A. 34:15-36.
Because neither of the premises rule's exceptions apply, M&F
must have controlled the freight elevator in order for Ramos's
injury to be compensable. See Novis v. Rosenbluth Travel,
138 N.J. 92, 96 (1994) (finding injury noncompensable because the
accident occurred on a sidewalk over which the employer exercised
no control). Control as defined in the Workers' Compensation Act
differs from control in the "formal property law sense"; the
former definition is more expansive. Livingstone v. Abraham &
Straus, Inc.,
111 N.J. 89, 105 (1988) (finding control under the
Workers' Compensation Act despite the absence of control
according to property law); Ehrlich v. Strawbridge & Clothier,
260 N.J. Super. 89, 92 (App. Div. 1992) (same).
The evidence establishes that M&F did, in fact, regularly
use the freight elevator for business purposes. Ramos and one
other M&F employee used the elevator in order to transport fabric
and clothing between the ground floor and the fourth floor.
Moreover, some employees used the elevator for purpose of ingress
and egress, and those who did not apparently did so as a matter
of personal choice. Because M&F operated the freight elevator
for conducting business, M&F had control of the elevator. See
Livingstone, supra, 111 N.J. at 105 (1988) (holding employer had
control over portion of a parking lot in which employees were
told to park); Ehrlich, supra, 260 N.J. Super. at 92 (holding
employer had control over staircase and adjacent sidewalk on
which employees were told to travel for ingress and egress);
Cressey v. Campus Chefs, Div. of CVI Serv., Inc.,
204 N.J. Super. 337, 343 (App. Div. 1985) (holding employer had control over
loading dock used for delivery and storage).
The fact that Ramos was not moving fabric or clothing at the
time of the accident did not divest M&F of control of the
elevator. Control in this context imports the notion of the
capacity, ability or power to occupy, possess or use. There is
no suggestion that control for one purpose does not authorize
control for other purposes. Rather, when an employer uses a
common area for business purposes, the common area is, by virtue
of that use, subject to the employer's control and considered
part of the employer's premises within the intendment of the
Workers' Compensation Act. Moreover, control is not a temporal
concept. The boundaries of an employer's premises do not shift
with the hour; instead, they are established until the employer
relinquishes and ceases to use the site.
Further, the fact that M&F did not have exclusive control of
the elevator does not place it beyond M&F's workplace premises.
"[T]he phrase `excluding areas not under the control of the
employer' does not relate to concepts of exclusive control or
duties of maintenance . . . but, rather, implies only use by the
employer in the conduct of his business." Cressey, supra, 204
N.J. Super. at 343.
Notably, the cases interpreting the term "control" in the
Workers' Compensation Act have involved common areas that were
not under the exclusive control of the employer. See Novis,
supra, 138 N.J. at 96; Livingstone, supra, 111 N.J. at 104-06;
Ehrlich, supra, 260 N.J. Super. at 92; Cressey, supra, 204 N.J.
Super. at 343-44. Those cases consider only whether the employer
used a common area to conduct its business. See Novis, supra;
Livingstone, supra; Erlich, supra; Cressey, supra. Thus, it is
the employer's conduct that determines whether it had control
over a common area. The evidence establishing the employer's
general use of the freight elevator for its business purposes
clearly implies a capacity to authorize its use for other
purposes, such as ingress and egress. In this setting, the
capacity to authorize use is the essence of control.
In sum, M&F is considered to have had control of the freight
elevator if the employer used it in conducting business and
allowed the employees to use it. Because M&F had its employees,
including Ramos, ride the elevator to transport fabric and
clothing and because its employees could, and did, use the
elevator for ingress and egress, M&F had control over the
elevator. Consequently, the accident that befell Ramos through
his use of the elevator occurred on the employer's premises
within the meaning of the Workers' Compensation Act.
Ramos also contends that he had indeed reported for work and
that his "[e]mployment [is] deemed to [have] commenced," N.J.S.A.
34:15-36, at the time of the mishap. He professes that he
arrived one hour before the scheduled commencement of the workday
because doing so was his habit of which he was proud. The SIF
contests Ramos's explanation of his early arrival. The SIF
maintains that Ramos arrived early for personal purposes,
including drinking coffee, smoking a cigarette and reading the
newspaper.
The compensation court concluded that Ramos's testimony that
he arrived early for the sole purpose of reporting for work was
credible. The court expounded:
At first I was somewhat mystified as to his
story about going to work early every day, it
just didn't seem likely, but the more I
observed him, the more I saw the type of
operation that was involved, the fact that he
took a bus to work, single man, he was a
victim of habit, I suppose, and I have
finally come around to accepting that version
of the story.
The factual findings of the compensation court are entitled to
substantial deference. An appellate court must
limit[] its inquiry solely to whether the
findings made by the Judge of Worker's
Compensation could reasonably have been
reached on sufficient credible evidence
present in the record, considering the proofs
as a whole, with due regard to the
opportunity of one who heard the witnesses to
judge of their credibility and with due
regard to his expertise.
Bradley v. Henry Townsend Moving & Storage Co.,
78 N.J. 532, 534
(1979); accord Sheffield v. Schering Plough Corp.,
146 N.J. 442,
461 (1996); Close v. Kordulak Bros.,
44 N.J. 589, 599 (1965).
Sufficient credible evidence in the record sustains the
compensation court's findings. Most importantly, Ramos himself
testified that he arrived at the office in order to report for
work -- not to drink coffee, smoke a cigarette or read the
newspaper. While he often drank coffee, smoked or read while he
waited, he could have done those activities at home. He
testified that he arrived at 7:00 a.m. each day as a matter of
habit because he "wanted to be early for work." His supervisor
told him that he "was his best employee because [Ramos] was
always there on time." We must accept the compensation court's
conclusion that Ramos was a credible witness.
Moreover, objective evidence bolsters the court's conclusion
that Ramos had reported for work on the morning of the accident.
At that time, Ramos had lived in the continental United States
for under four years, and he did not proficiently speak English.
It took him a year to find a job. In Puerto Rico, all of his
work experience was in the agriculture industry. Four fingers on
Ramos's left hand had been amputated past the first joint. These
facts suggest that Ramos stood on the fringes of the labor
market. Given his injured hand and limited mastery of the
English language, Ramos may have had difficultly in finding
another job and may not have felt secure in his employment with
M&F. Perhaps arriving early gave Ramos confidence of his chances
of retaining his job. Other employees also arrived early.
Moreover, if Ramos had arrived late, his pay would have been
docked. His supervisor praised him for arriving early. In
conclusion, Ramos's habit of arriving one hour early in order to
report for work, while idiosyncratic, was understandable.
The compensation court's conclusion that Ramos had reported
for work at the time of the accident is supported by credible
evidence in the record.
In sum, because M&F controlled the freight elevator on which
Ramos was injured and Ramos had reported for work on the morning
of the mishap, we hold that Ramos's injury is compensable.
Therefore, we reverse the Appellate Division.
Because Ramos's injury is compensable, we must determine if the compensation court's finding that Ramos was permanently and totally disabled was supported by sufficient evidence in the record.See footnote 1
To support his claim of permanent total disability, Ramos presented two expert witnesses, Doctors Ahmad and Pollock, who had examined Ramos approximately four and one-half years before they testified. In finding Ramos's disability permanent and total, the compensation court credited their testimony.
The SIF asserts that Doctors Ahmad and Pollock based their
expert testimony on medical examinations that were too stale.
Ramos responds that a recent medical examination was not
necessary because a permanent total disability cannot be found
unless "no fundamental or marked improvement in such condition
can be reasonably expected." N.J.S.A. 34:15-36.
The SIF correctly observes that an expert opinion that a
person has suffered a permanent partial disability must be
supported by a recent medical examination. Awards of permanent
partial disability cannot be based on "medical examinations
performed shortly after accidents and well before the hearings in
the absence of recent objective medical evidence of continued
impairment." Perez v. Pantasote, Inc.,
95 N.J. 105, 119 (1984).
For example, medical examinations that occurred within two months
of the accident but three years prior to the determination of
disability cannot support a finding of permanent partial
disability. Allen v. Ebon Servs. Int'l, Inc.,
237 N.J. Super. 132, 136 (App. Div. 1989).
Nonetheless, a finding of permanent total disability differs
from a finding of permanent partial disability. The statutory
definitions of the two types of disability diverge.
"Disability permanent in quality and partial
in character" means a permanent impairment
caused by a compensable accident or
compensable occupational disease, based upon
demonstrable objective medical evidence,
which restricts the function of the body or
of its members or organs; included in the
criteria which shall be considered shall be
whether there has been a lessening to a
material degree of an employee's working
ability.
"Disability permanent in quality and total in
character" means a physical or
neuropsychiatric total permanent impairment
caused by a compensable accident or
compensable occupational disease, where no
fundamental or marked improvement in such
condition can be reasonably expected.
Unlike permanent partial disability, a finding of permanent total
disability cannot be made unless the injured person cannot be
reasonably expected to make a fundamental or marked improvement.
To be final, the diagnosis must be made at a time when it may be
presumed that the disability has become permanent. Because a
person diagnosed with a permanent total disability, by
definition, cannot be reasonably expected to improve
fundamentally, it can be inferred that the person has not made a
marked improvement since the diagnosis. Consequently, a recent
medical examination is not as vital for a finding of permanent
total disability as it is for a permanent partial disability
determination. While "the validity of a medical finding of a
permanent injury may decrease with the passage of time," Perez,
supra, 95 N.J. at 119, an older medical examination is competent
evidence of a permanent total disability if it was undertaken
after permanency occurred.
Notably, Doctors Ahmad and Pollock examined Ramos over two
and one-half years after the accident. The thirty-one-month lag
between the accident and the examinations gave the doctors an
opportunity to evaluate Ramos's long-term recovery from his
injury. Accordingly, when they conducted their examinations,
Doctors Ahmad and Pollack had a basis for determining that
Ramos's condition could not have been reasonably expected to make
a fundamental or marked improvement. Therefore, the doctors'
expert testimony constituted sufficient evidence that Ramos's
disability was permanent and total.
The compensation court had the opportunity to evaluate
witnesses' credibility. In addition, the court had expertise
with respect to weighing the testimony of competing medical
experts and appraising the validity of Ramos's compensation
claim. See Lewicki v. New Jersey Art Foundry,
88 N.J. 75, 89
(1981) (recognizing the deference entitled to compensation courts
due to their expertise). Because sufficient credible evidence
supported the compensation court's finding that Ramos's
disability was permanent and total, we must uphold that judgment.
See Sheffield, supra, 146 N.J. at 461 (deferring to and upholding
the compensation court's conclusions); Paul v. Baltimore
Upholstering Co.,
66 N.J. 111, 121-22 (1974) (holding it is
within the compensation court's province to accept the testimony
of the claimant's experts and reject the testimony of the
opposing physicians); Perez v. Capitol Ornamental,
288 N.J.
Super. 359, 367-68 (App. Div. 1996) (deferring to and upholding
the compensation court's conclusions based on proper legal
principles).
We hold that Ramos's accident occurred in the course of employment and that he was permanently and totally disabled as a result. The judgment of the Appellate Division is reversed.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, and COLEMAN
join in JUSTICE HANDLER's opinion. JUSTICE POLLOCK has filed a
separate dissenting opinion, in which JUSTICE GARIBALDI joins.
SUPREME COURT OF NEW JERSEY
A-
109 September Term 1997
FELIPE RAMOS,
Plaintiff-Appellant,
v.
M&F FASHIONS, INC.,
Respondent,
and
SECOND INJURY FUND,
Respondent-Respondent.
POLLOCK, J., dissenting.
The Workers' Compensation Act (the Act) is a carefully
constructed legislative plan for providing benefits to workers
injured in the workplace. It represents the Legislature's best
judgment on the appropriate allocation between employers and
employees of the costs and benefits for such injuries.
Originally enacted in 1911, the Act was substantially
amended in 1979. One goal of the Legislature when enacting the
1979 amendments was to reverse this Court's creation of
exceptions to the “going and coming rule.” That rule bars a
worker from collecting workers' compensation benefits for
injuries that occur while the employee is going to or coming from
work. Hammond v. Great Atlantic & Pacific Tea Co.,
56 N.J. 7, 11
(1970).
In the first four decades under the Act, courts confined
compensable injuries to those that occurred in the workplace.
See Jon L. Gelman, New Jersey Practice, Workers' Compensation Law
§ 8.4 (2d ed. 1994); Gullo v. American Lead Pencil Co.,
119 N.J.L. 484 (E. & A. 1938) (denying workers' compensation benefits
to employee who slipped and fell on sidewalk adjacent to factory
where employee worked). Then, courts began interpreting the Act
more liberally to extend benefits beyond the workplace. Gelman,
supra, § 8.4. Ultimately, courts developed so many exceptions
that little was left of the original rule. Watson v. Nassau Inn,
74 N.J. 155, 159 (1977).
In 1979, the Legislature amended the Act to overcome certain
inequities to both employers and employees. The Joint Statement
of the Senate Labor, Industry and Professions Committee and the
Assembly Labor Committee states:
The bill would put significantly more money
into the hands of the more seriously injured
workers while providing genuine reform and
meaningful cost containment for New Jersey
employers from unjustified workers'
compensation costs that are presently among
the highest in the nation.
This legislation would benefit employers by:
. . .
establishing relief from the far-reaching
effect of the “Going and Coming Rule”
decisions by defining and limiting the scope
of employment.
[Senate Labor, Industry & Professions
Committee, Joint Statement to substitute for
S. 802 & A. 840, at 1-2 (1979).]
Specifically, the Act defines “employment”:
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.]
Just four months ago, this Court acknowledged that the
effect of the 1979 amendments was to abrogate the “going and
coming” rule as it had evolved under the Act. Kristiansen v.
Morgan, N.J. No. A-27, 1998 WL ll9603, at *9 (Mar. 12,
1998). As the Appellate Division noted, “It is time to recognize
that the 'going and coming rule' has come and gone.” Serrano v.
Apple Container,
236 N.J. Super 216, 221 (App. Div. 1989),
certif. denied,
121 N.J. 591 (1990). Under the majority opinion,
however, the “going and coming” rule -- and its exceptions -
have returned.
Critical to the majority's reasoning is its definition of
“control” in N.J.S.A. 32:15-36. As one would expect with
remedial legislation, the Court has interpreted “control” not in
its “formal property law sense,” Livingstone v. Abraham &
Straus, Inc.,
111 N.J. 89, 105 (1988), but in a common sense
manner. Id. at 103.
Previously, the Court has interpreted the
term “as not allowing compensation for accidents occurring in
areas outside of the employer's control, as when the employee is
going to and coming from work.” Zelasko v. Refrigerated Food
Express,
128 N.J. 329, 336 (1992). The majority's definition of
“control,” however, creates a revolving door for the “going and
coming” rule to go and come with abandon.
According to the majority:
Control in this context imports the notion of
the capacity, ability or power to occupy,
possess or use. There is no suggestion that
control for one purpose does not authorize
control for other purposes. Rather, when an
employer uses a common area for business
purposes, the common area is, by virtue of
that use subject to the employer's control
and considered part of the employer's
premises within the intendment of the
Workers' Compensation Act. Moreover, control
is not a temporal concept. The boundaries of
an employer's premise do not shift with the
hour; instead, they are established until the
employer relinquishes and ceases to use the
site.
In this case, the employee was injured while taking a
freight elevator from the first floor of a building to his place
of employment on the fourth floor of a five-story building. Most
of the workers, including the employee's supervisor, did not ride
the elevator to work. Various businesses in the building used
the elevator for its intended purpose of carrying freight. As
the Appellate Division concluded, “the freight elevator was a
common area.” 302 N.J. Super. at 33.
The majority, however, concludes that
In this setting, the capacity to authorize
use is the essence of control.
In sum, M&F is considered to have had control
of the freight elevator if the employer used
it in conducting business and allowed
employees to use it. Because M&F had its
employees, including Ramos, ride the elevator
to transport fabric and clothing and because
its employees could, and did, use the
elevator for ingress and egress, M&F had
control over the elevator. Consequently, the
accident that befell Ramos through his use of
the elevator occurred on the employer's
premises within the meaning to the Workers'
Compensation Act.
More faithful to the legislative intent is the conclusion of
the Appellate Division:
[Ramos] bears the burden of establishing
that M&F exercised control over the area
where he was injured. The record reveals
that he has failed to demonstrate such fact.
The course of entry taken by [Ramos], to use
the freight elevator to gain access to the
fourth floor, was selected pursuant to
[Ramos'] independent choice. M&F did not
mandate that its employees use the freight
elevator to gain entrance to the factory,
thus [Ramos'] accident was not incident to
any action on M&F's part to exercise control
of employee's off-premises freedom.
Workers' compensation cases by their nature are fact sensitive. The case that presents the closest facts to the instant case is Novis v. Rosenbluth Travel, 138 N.J. 92 (1994). In Novis, this Court unanimously reversed an award of compensation benefits to an employee “who had traveled out of town on behalf of her employer, sustained injuries while walking across the only sidewalk leading from an office building parking lot to the entrance of the office building in which her
employer's branch office was located.” Id. at 93. The Court
rejected the argument that it adopts today -- that use equates
with control. The Court stated that “[The employer] exercised no
control over any portion of the parking lot adjacent to the
office building in which its branch office was located. [The
employer] simply shared the lot with the other tenants . . . .”
Id. at 96.
The two cases on which the majority primarily relies are
distinguishable. In both of those cases, unlike in the present
case, the employer exercised greater control over the area where
the accident occurred. In Livingstone, supra, the employer, an
anchor tenant in the Short Hills Shopping Mall, had instructed
its employees by written notice to park in the far corner of the
parking lot. 111 N.J. at 91. The purpose of the directive was
to save more convenient parking spaces for customers. Ibid. The
lot, although not owned or maintained by the employer, was
“effectively equivalent to an employer-owned lot” because the
employer directed the employees to park in a designated area.
Id. at 104-05.
In Cressey v. Campus Chefs, Div. of CVI Servs., Inc.,
204 N.J. Super. 337 (App. Div. 1985), the only egress required
employees to use a rear door leading to a loading dock. Id. at
340. Steps led from the dock to a ramp below. Ibid. When they
could not use the ramp, the employees stepped from the loading
dock to a retaining wall along side the ramp, proceeded around a
corner, and to the ground. Ibid. Cressey was injured when he
fell while trying to walk around the corner of the loading dock.
Id. at 341. In finding that the loading dock holds “an unusual
risk,” the Appellate Division relied on the fact that the
employee “was required by [the employer] to traverse a hazard
route in leaving the place of employment.” Id. at 344. M&F, in
contrast, did not “require” Ramos to use the freight elevator to
get to work. Ramos simply chose to use the elevator instead of
walking up the stairs.
When amending the Act in 1979, the Legislature could have
drafted a rule that granted more liberal benefits to employees
who were injured while going to and coming from work. The
Legislature, however, made a different policy choice. A court's
task is not to rewrite the Act to impose an allocation of costs
and benefits that it deems inappropriate, but to recognize the
allocation made by the Legislature.
I would affirm the judgment of the Appellate Division.
Justice Garibaldi joins this opinion.
NO. A-109 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
FELIPE RAMOS,
Plaintiff-Appellant,
v.
M & F FASHIONS, INC.,
Respondent,
and
SECOND INJURY FUND,
Respondent-Respondent.
DECIDED July 13, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Pollock
Footnote: 1 Because the Appellate Division did not decide this issue, neither party raises it in their briefs before this Court. But, both parties litigated this issue before the Appellate Division.