My employer, a retail store, is located in a large shopping mall. We do not have a separate parking area for our employees, but we are instructed not to park near the major entrances of the mall; we are to park near the access road, not near the entrances.  This is to allow our customers to park as close to the mall entrances as possible.  One morning while parking my car in the mall lot where I was instructed to park I slipped and fell. I broke my elbow and hurt my back. My employer denied me Workers’ Compensation benefits and told me to put my medical treatment through my private benefits and to apply for State Temporary disability. I was told my fall was not compensable since I had not yet clocked in and was still “commuting,” and that my employer did not control the parking lot. Is this correct?

In New Jersey commuting to and from work is controlled by the “going and coming rule.”  This simply means that accidents occurring during an ordinary commute and before the employee actually enters the employer’s premises are not compensable. However, there are exceptions. Here, although the employer does not own or control the lot, it does exert a measure of “control” over the employees by directing them to park in an area away from the mall entrances.  Our courts have carved out an exception to the “going and coming rule” where the employer “controls” the employee parking. The act of the employer directing its employees where to park should be sufficient to allow the fall to be considered compensable. Of course all claims are fact-sensitive. If you have any questions about a possibly work-related accident the Worker’s Compensation attorneys here at Stark and Stark are always ready to assist you.

Al Vitarelli is a Shareholder in Stark & Stark’s Marlton, New Jersey office, concentrating in Workers’ Compensation Law. For more information, please contact Mr. Vitarelli.