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Originally enacted in 1911, the Act was substantially amended in 1979.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 *599employee is going to or coming from work. Hammond v. Great Atlantic & Pacific Tea Co., 56 N.J. 7, 11, 264 A.2d 204 (1970).
In the fust 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, 196 A. 438 (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, 376 A.2d 1215 (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 810, 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, 153 *600N.J. at 314, 708 A.2d at 1181 (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, 565 A.2d 417 (App.Div.1989), certif. denied, 121 N.J. 591, 583 A.2d 298 (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, 543 A.2d 45 (1988), but in a common sense manner. Id. at 103, 543 A.2d 45. 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, 608 A.2d 231 (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.
[Ante at 592-93, 713 A.2d at 491.]
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 *601Appellate Division concluded, “the freight elevator was a common area.” 302 N.J.Super. at 33, 694 A.2d 586.
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.
[Ante at 593-94, 713 A.2d at 491-92.]
■ 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.
[302 N.J.Super. at 31, 694 A.2d 586.]
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, 649 A.2d 69 (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, 649 A.2d 69. 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, 649 A.2d 69.
The two cases on which the majority primarily relies are distinguishable. In both of those cases, unlike in the present case, *602the 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, 543 A.2d 45. 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, 543 A.2d 45.
In Cressey v. Campus Chefs, Div. of CVI Serv., Inc., 204 N.J.Super. 337, 498 A.2d 1274 (App.Div.1985), the only egress required employees to use a rear door leading to a loading dock. Id. at 340, 498 A.2d 1274. 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 comer of the loading dock. Id. at 341, 498 A.2d 1274. 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, 498 A.2d 1274. 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.
*603Justice GARIBALDI joins this opinion.
For reversal — Chief Justice PORITZ and Justices HANDLER, O’HERN, STEIN and COLEMAN — 5.
For affirmance — Justices POLLOCK and GARIBALDI — 2.