Safety and OSHA News

Injured pulling out of employer’s parking lot: Workers’ comp?

While pulling out of her employer’s parking lot, an employee’s vehicle was hit by another car. The employee’s vehicle was partially in the street and still in the parking lot. Can the injured employee get workers’ comp? Carla Burdette was a dealer at Harrah’s casino in Atlantic City, NJ. On Sept. 19, 2012, as she was leaving for the day, Burdette drove her vehicle along Harrah’s driveway, passed through a Harrah’s security gate and started to make a legal left turn onto a city street.

As she did, another vehicle collided with hers, directly striking Burdette’s Ford Explorer’s driver door. When it was hit, Burdette’s vehicle was partially on the public street but still partly over Harrah’s driveway.

Burdette suffered injuries to her head, neck, back, hands, shoulders and left knee. She filed for workers’ comp benefits, and Harrah’s denied responsibility for her claim.

A judge heard her case and determined “the only issue that the Court must decide is whether petitioner was still in the course of her employment with Harrah’s when the accident occurred.”

The judge reviewed a video of the accident and where Burdette’s vehicle ended up after the crash, read the police report and made two trips to the scene.

After reviewing the evidence, the judge concluded that at the time of the collision, Burdette’s vehicle had exited the parking lot, but not completely. About one foot of her Explorer was still in the area of the parking lot controlled by Harrah’s.

Since Burdette’s vehicle was still partially (and barely) on Harrah’s property when it was struck, the judge awarded medical and temporary disability benefits.

Harrah’s appealed to the New Jersey Superior Court.

Does exact position of vehicle matter?

Harrah’s argued the judge had misapplied the premises rule because he based the decision on the location of the vehicle rather than the place where Burdette’s injury occurred.

The casino said its dealer shouldn’t receive workers’ comp benefits because at the moment of the crash, Burdette and the vehicle’s driver seat were located above the public street — only the back one foot of the vehicle was still over Harrah’s driveway.

For workers’ comp, New Jersey law says “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 says 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.

The appeals court noted Burdette never fully left Harrah’s premises when the crash occurred:

“We reject Harrah’s ultra-rigid approach that focuses only on the colliding vehicles’ point of impact and the front seat location of Burdette in the Explorer.

“Parking lots either owned, maintained, or operated by employers are properly considered part of the employer’s premises.”

For that reason, the appeals court upheld the lower court’s decision that Burdette should receive workers’ comp benefits for her injuries.

What do you think about the decision? Let us know in the comments.

(Burdette v. Harrah’s Atlantic City, Superior Crt. of NJ Appellate Div., No. A-4797-12T1, 1/17/14)

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  1. Reading the article my first thoughts were why she would not claim against the other driver and their insurance since the article points out that she made a “legal” left turn. But re-reading the article, she made a left turn and was struck on her drivers side door. Unless the other driver had a stop sign or ran a signal then this person appears, to me at least, to have been at fault for this accident. The appeals court said that Harrah’s was using an “ultra-rigid” approach in it’s defense. It appears to me that if the courts view the video and determine that 1′ of the Explorer is still in the parking lot, which indicates the tires must be on the public road, then they are the ones being “ultra-rigid” in this definition. This person has been absolved of all their personal responsibility and the company will have to pay tens, if not hundreds, of thousands of dollars for something they did not cause.

    • SafetyStone says:

      I agree, if the accident occurred through the direct fault of the employee how can the casino be held responsible for her actions? When an employee has an accident at work from diliberate actions that they took and put themselves at risk then WC has and will often deny benefits.

      • Most WC injuries are the direct fault of the employee. Not intentional, but still due to their own neglect, carelessness, not following rules, etc. So fault isn’t the issue. There isn’t anything here that indicates the employee willfully put herself in the line of the other vehicle with an intent to be injured. It was an accident.

  2. Mark Morris says:

    I am thinking that right away from the city to Harrah’s, leading edge of roadway should have been brought to the table by the defending attorney. She was outside the boundary of the employment perimeter. It would almost be like holding them responsible even if she was struck and the impact ejected the vehicle back into their drive.

  3. Robert Hutchinson says:

    To me, this seems an unreasonable misapplication of workers’ comp. It’s an unfortunate traffic accident, and I assume both drivers are insured. The collision occurred in a public street so I fail to see the relevance of her back bumper hanging over the property line. What if only two inches of her vehicle overhung the line? How finely can this hair be split?

  4. what she was still punch in to work? seems to me she was leaving and off the clock.

    • geronimo909 says:

      That is a good point. How long was it since she punched out? Is an employer responsible if she decided to hang at the bar for an hour and then leave? Or sit in her car for an hour and then drive off? Also, normally the owner of a parking lot does not own the driveway entrance. It is usually public property until it hits the property line.

  5. She was off the clock , not performing any part of her job or following instructions. The vehicle insurance should cover any all claims for this. Decisions such as these are the reason the system intices people to sue for anything they can. Get something for nothing. Harrahs should not be responsible for this

  6. There’s three things, either the employee is compensated to home, on the clock or off the clock. I don’t understand this position at all. One might also consider that most properties, though there is public right of way, are owned to the middle of the road or street by the titled abstract owner. In which case it doesn’t matter whether the vehicle is on the street or not concerning where it sits when hit. I have a very hard time with clocked out but still on Work Comp. benefits. But stated do vary from state to state.

  7. This one reason why NJ WC is one of the worst in the nation. How could a panel and then an appeals court find the employer responsible? They see, “OH HARRAHS…they have money, what will it hurt them if we decide against the big, bad employer??”

  8. I think the decisions made by the courts is totally inappropriate and wrong. Although laws and rules change from state to state, province to province and country to country, it should remain logical. An employer is responsible for the worker’s safety and the worker should get Workers Compensation if, and only if, the employer has control of the environment and is found to be negligent of providing safety within that environment. An employer is NOT in control of the immediate environment (the vehicle and the operation of said vehicle), but is in control of the secondary environment (the parking lot and driveway).
    Since the employer has no control over the immediate environment nor the safe operation of the personal vehicle, then Workers Compensation benefits should not be allowed.
    The courts are utilizing semantics to say she was in the course of her employment when she and only she was in direct control over the vehicle.
    In Ontario Canada, personal vehicle accidents are only covered by Workers Compensation if the employer requests a worker to utilize their personal vehicle for business purposes or if on company time.
    If an when an injury occurs in the parking lot in control of the employer, Workers Compensation is awarded if negligence was found on the employers part when maintaining the lot, i.e. ice, snow, pot holes, loose gravel or unmaintained surface. If the worker suffers a fall, then I think Workers Compensation is a no-brainer, but if a worker slams their own hand in the door of thier own car, how would Workers Compensation give benefits for something that is not under the control of the employer. This analogy supports my opinion on the vehicle collision.

  9. Totally disagree with the courts. Vehicle was in the process of leaving the property when it was hit. Not anthing the employer had control of. Thankfully, in my state, the coming and going rules apply to as soon as you get out of or into your car. The employee would be covered if they slipped and fell coming or going from the lot once they left their car.
    I wounder what the subrogation regulations are in NJ. In our state, if the car struck an employee, we would be able to recoup losses from the owner or their insurance.

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