Fiacco v. Fed. Shipbldg. & Drydock Co.
| Citation | 38 A.2d 896 |
| Parties | DEL FIACCO v. FEDERAL SHIPBUILDING & DRYDOCK CO. |
| Decision Date | 30 August 1944 |
| Court | New Jersey Department of Labor-Workmen's Compensation Bureau |
OPINION TEXT STARTS HERE
Proceedings under the Workmen's Compensation Act by Columbo Del Fiacco, claimant, opposed by Federal Shipbuilding & Drydock Company, employer. On claim petition.
Judgment in favor of claimant.
Avidan & Avidan and Samuel Avidan, all of Newark, for petitioner.
Lindabury, Depue & Faulks, of Newark, by Andrew Lawrie, Jr., of East Orange, for respondent.
MEDINETS, Deputy Commissioner.
The petitioner testified that on February 22, 1944, he was employed by the respondent company; that on that day he had taken a bus to report to work at Port Newark for the respondent company; that this bus drove through a gate leading from the street onto the private premises of the respondent, as which point he stepped off the bus and then proceeded to walk in the direction of another gate to commence work for the day, when, after a short distance, he was struck by another Public Service bus that had been using the private grounds of the respondent as a terminal. The accident occurred within approximately one-half hour of his actual starting time for work for that day. Petitioner was injured in the right lower back and right leg. He had received approximately eleven treatments by Dr. DeFronzo extending over a period of approximately six weeks. The petitioner's wages were in excess of $30 per week, establishing a compensation rate of $20 per week.
There was further testimony on behalf of the petitioner which was admitted by the respondent, that the bus had used the terminal on the private grounds of the respondent for the purpose of loading and unloading passengers.
The report of Dr. DeFronzo on behalf of the petitioner was offered in evidence by consent of both parties indicating a charge of $22 for eleven treatments and an estimate of permanent disability of 15-17 1/2% of partial total disability for the sacroiliac and myositis condition.
For the respondent there was testimony by Ronald McGregor confirming the fact that the bus had used the terminal on the private grounds of the Federal Shipyards; that the terminal was built in the main for the convenience of the employees of the yard and that any employee traveling by bus to approach the yard of the employer had to pass through this terminal to report for work. He further testified that this Public Service bus entered the private grounds of the respondent through one gate, then discharged the passengers at the terminal, and then was obliged to proceed through another gate to leave the respondent's premises. He stated that sometimes sailors and other individuals working in the neighborhood would board the busses, and were discharged on the respondent's grounds.
Dr. Keeley, an osteopath, testified for the respondent that he had rendered first aid to petitioner; that he found some injury in the region of the right lower buttock, found no objective symptoms of injury. On cross-examination he stated that the loading platform was on the property of the respondent and that at times some British sailors from the channel some 300 feet away would sometimes come through the gate and use the bus in question.
For the respondent the report of Dr. Beling was offered in evidence in lieu of his testimony indicating an estimate of permanent disability of 5% of partial total disability.
At the conclusion of the case respondent's attorney then made a motion for dismissal on the grounds that petitioner failed to prove a compensable accident.
The important question here at issue, apart from the controversy as to the extent of permanent disability, was whether or not the petitioner had sustained an accident arising out of and in the course of his employment. More specifically the important question is whether or not the petitioner was in the course of his employment at the time of the accident.
Admittedly the petitioner sustained an accident on the private grounds of his employer within a short time or approximately one-half hour of his commencement of work after he had left a Public Service bus which was using the private grounds of the respondent for the purpose of loading and unloading passengers. The bus terminal was permitted by the respondent primarily for the convenience of its employees. From the bus terminal the petitioner was proceeding in the direction of another main gate on the private grounds of the employer to go to his place of actual work.
From the facts of this case it appears that this petitioner was still within the zone of his employment at the time of the accident. The term ‘employment’ as used in the Workmen's Compensation Act, N.J.S.A. 34:15-1 et seq., is not to be construed so as to be co-extensive in time or place with the actual working hours or place of actual work. Grady v. Nevins Church Press Co., 120 N.J.L. 351, 199 A. 578, 580; Terlecki v. Strauss, 85 N.J.L. 454, 89 A. 1023, affirmed 86 N.J.L. 708, 92 A. 1087; Alberta Contracting Corp. v. Santomassimo, 107 N.J.L. 7, 150 A. 830; Bolos v. Trenton Fire Clay & Porcelain Co., 102 N.J.L. 479, 133 A. 764, affirmed 103 N.J.L. 483, 135 A. 915; Rubeo v. Arthur McMullen Co., 117 N.J.L. 574, 189 A. 662, af...
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