On appeal from Workmen's Compensation Division.
[81 NJSuper Page 111] Respondent appeals from the determination of the Workmen's Compensation Division judge. He contends that petitioner's own testimony indicates that her employment was "casual" and therefore not compensable within the provisions of the act. The record indicates that the matter initially proceeded to trial before the judge of compensation on the basis of a pretrial memorandum entered into between the parties. A reading of that memorandum indicates that the question of casual employment was not raised. It appears that the only question to be determined was the rate of compensation and the amount to be awarded to petitioner. No other issue was raised.
After hearing the matter, the judge of compensation apparently reserved decision, for his determination was not made for some time after the trial. Between the hearing and the final determination of the matter, the compensation judge received a letter from respondent's attorneys in which they cited a recent decision of the Appellate Division, Herritt v. McKenna , 77 N.J. Super. 409 (1962), and informed him that under that case they believed that the testimony indicated a casual employment and no award could be made. They further stated that they desired to "move for a dismissal of the opinion."
The record indicates that although respondent interjected the issue of casual employment for the first time after all the evidence was concluded, the judge of compensation considered the new issue and resolved it in petitioner's favor. To do so he necessarily had to be satisfied from all of the testimony adduced, limited as it may have been to the issues raised in the pretrial memorandum, i.e. , rate of compensation and amount thereof, that the proofs established that petitioner's employment was "regular, periodic or recurring" (N.J.S.A. 34:15-36). The judge expressed his findings as follows:
"I have considered the proofs presented in the above entitled matter, and have concluded that the petitioner was an employee of the respondent, and was not a casual employee. Her working with the respondent was under such circumstances as to constitute regular employment; although for some period of the time after the commencement of the employment, the employment may well have been characterized as casual. There is a point at which casual employment ceases to be casual, and become regular employment."
This determination, as well as the basis that the compensation judge used for computing the amount of the award, are the subject of this appeal.
The petitioner seeks to have this court sustain the findings below and argues that (1) respondent should not be permitted to raise the question of casual employment on appeal; (2) the findings below were proper in law, and (3) the amount of the award was properly computed.
In answer to petitioner's contention with reference to raising the question of casual employment, respondent argues that if the employment was a casual one, then the compensation judge was without jurisdiction to make an award and the question of jurisdiction can be raised at any time.
As the matter presently stands, there is presented for the court's decision the questions of (1) whether the contention that petitioner's employment was casual is addressed to the jurisdiction of the Workmen's Compensation Division or is a defensive pleading which, if not raised in the pretrial memorandum, should be considered as abandoned, and (2) whether the compensation judge properly considered respondent's defense of casual employment in determining this matter.
The court is of the opinion that respondent is not barred from asserting that, based on the evidence adduced, petitioner's employment was casual. If a petitioner presents evidence which shows casual employment, he cannot recover merely because respondent failed to expressly plead the defense of casual employment. Stein v. Felden , 17 N.J. Super. 311 (App. Div. 1952); cf. Fury v. New York & Long Branch R.R. Co. , 127 N.J.L. 354 (E. & A. 1941), certiorari denied 315 U.S. 815, 62 S. Ct. 800, 86 L. Ed. 1213 (1942).
The burden of proving that employment is casual rests upon the employer; it is not "the burden of the employee to present evidence that would disprove casual employment." Haytko v. William Crabb & Co. , 17 N.J. Super. 95 (Cty. Ct. 1951), affirmed 21 N.J. Super. 330 (App. Div. 1952).
A casual employee is expressly excluded by the act, R.S. 34:15-36; therefore the defense is jurisdictional. The jurisdiction of the Compensation Division is limited by the statute. Where it exceeds its jurisdiction its act is a nullity. Deviations from the Division's established sphere of action cannot be given by consent, default, waiver or estoppel. Nagy v. Ford Motor Co. , 6 N.J. 341 (1951).
Ordinarily, an appellate court will not entertain questions not raised below. An exception occurs when the issue relates to jurisdiction. Sustick v. Slatina , 48 N.J. Super. 134 (App. Div. 1957); M.N. Axinn Co. v. Gibraltar Development, Inc. , 45 N.J. Super. 523 (App. Div. 1957); Roberts Elec., Inc. v. Foundations & Excavations, Inc. , 5 N.J. 426 (1950); Bocchino v. Best Foods , 16 N.J. Super. 154 (Cty. Ct. 1951). A jurisdictional defense need not be set up in the pleadings. Bocchino v. Best Foods, supra; State v. Shupe , 88 N.J.L. 610 (E. & A. 1916).
In Victor Chemical Works v. Industrial Board , 274 Ill. 11, 113 N.E. 173, 179 (Sup. Ct. 1916), the court held that casual employment could not be raised for the first time on appeal. However, in Illinois casual employment is not a statutory exclusion, as it is in New ...