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Workplace parking lot injuries focus of proposed legislation

parking lot

Proposed legislation in New Jersey that would expand what constitutes workers compensation when it comes to slips, trips and falls in employer parking lots has legal experts anticipating movement in other states where such claims are often considered case by case.

S.B. 771, which passed the New Jersey Senate Jan. 11 and is now with the Assembly Labor Committee, would change compensability of parking lot slips, trips and falls. The bill states that if an employer provides or designates a parking area for employees, their employment commences when they arrive at the area and ends when they leave it.

Currently, most states do not have in place such guaranteed acceptance of parking lot injuries on the basis of lot ownership and maintenance, according to legal experts who say the move could lead to more litigation, a surge in claims and possible fraud.

Parking lot injuries are “an open question in a lot of states, and New Jersey is trying to make it clearer,” said Howard Wexler, partner in the employment practice at Seyfarth Shaw LLP in New York. “In the Northeast this time of year there are lots of times when employees slip and fall in the parking lot. There would definitely be an uptick in the amount of (accepted) workers comp claims” if the bill becomes law.

“If this gains traction in New Jersey it’s not uncommon for legislation to be picked up in another state,” he said.

The claims can run the gamut from minor wrist injuries to spinal injuries with costs soaring to $1 million, said Matthew Harmon, Portland, Maine-based senior vice president of claims for The MEMIC Group, which sells workers compensation insurance in several Northeastern states.

 Brian Hammer, a Des Moines, Iowa-based safety consultant and standards development chair for the American Society of Safety Professionals, said that “by the time it is over, with surgeries, you are talking $100,000 easily” when it comes to claims costs.

Ioannis S. Athanasopoulos, a partner at Goldberg Segalla LLP in Newark, New Jersey, said that under the current system such claims are heavily dependent on the facts of the case, such as whether the employee was leaving on a work-related errand. The New Jersey proposal, he said, goes against a commonly accepted standard in workers comp law — the comings-and-goings rule that states accidents while one is arriving or leaving work are typically not compensable.

The bill could “open the door to some level of misuse if it passes,” Mr. Athanasopoulos said, citing claims where employees have lied about where and when they fell. The bill could be problematic especially for employer-owned parking lots that are not adjacent to the work site, or require one to walk a public street — not maintained by the employer — to the provided lot, he said.

“This leaves up so much more opportunity to bring in an accident that was not work-related,” he said. The bill proposes “the minute an employer designates a parking lot, anything on the way would be work-related,” he said.

Kitty Boyte, partner at Constangy, Brooks, Smith & Prophete LLP in Nashville, said reforms in Tennessee in 2014 provided that if a worker is on the employer’s premises “he or she is in the course of employment and the injury is covered,” yet the “course” of employment takes into account the time, place and circumstance of injury— parameters not included in the New Jersey bill.

Parking lot injuries are so “fact specific (in Tennessee) that every case is different,” she said.