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Dee v. Excel Wood Products Co.

Decided: February 17, 1965.

NICHOLAS DEE, PETITIONER-APPELLANT,
v.
EXCEL WOOD PRODUCTS CO., INC., RESPONDENT-RESPONDENT



Conford, Kilkenny and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

Petitioner was injured on August 17, 1961 while he was painting the previously unpainted exposed woodwork on the exterior of respondent's newly constructed industrial building in Lakewood, New Jersey. A ladder supporting a scaffold, both furnished by petitioner himself, gave way and he fell to the ground. Petitioner filed a claim petition for workmen's compensation. The Division determined that petitioner was in the employ of respondent at the time of the accident and made an award in his favor for temporary and permanent disability. On the employer's appeal, the Ocean County Court ruled that petitioner had failed to prove that he was an employee at the time of his injuries, set aside the award granted by the Division, and dismissed the claim petition. Petitioner appeals from this adverse judgment.

The question to be resolved is whether petitioner was an employee or an independent contractor at the time of the accident in issue. We have made our own independent study and appraisal of the record, as required by Russo v. United States Trucking Corp., 26 N.J. 430 (1958), and Ricciardi v. Marcalus Mfg. Co., 26 N.J. 445 (1958). We reach the conclusion that petitioner has not sustained the burden of proving by a preponderance of the evidence that he was an employee of respondent at the time of the accident. We find that he was at that time an independent contractor. Accordingly,

the judgment of the County Court, dismissing the claim petition, is affirmed. We note hereinafter the reasons which prompt our determination.

Petitioner was in business for himself as a painting contractor. He had his own business cards. He billed for work done. He had and used his own paint brushes, ladders and equipment. We are aware that petitioner was also a member of a painters union and occasionally obtained employment as a painter through the business agent of the union. The painting work involved herein was not obtained through the union or its business agent. Rather, petitioner was engaged to do this paint job under the circumstances hereinafter noted.

One Grabow sold paint and painting materials. He learned that respondent had a painting job to be done. On August 7, 1961 Grabow advised petitioner, one of his customers, as to the availability of this job. Petitioner called on Jack Landman, president of respondent, and presented his business card. Landman had some painting work to be done for his new Lakewood home. There were some windows at Freehold Lumber Company which required painting before being installed in the new house. An arrangement was entered into whereby Landman would furnish the paint needed for the job and petitioner would perform the labor, using his own brushes. Petitioner was authorized to pick up any paint he thought necessary at Grabow's store and have the same charged to Landman's account. Instead of a flat price for labor for the entire job, the parties agreed that petitioner would receive $2.50 per hour for each hour of labor performed. Petitioner alone decided when the work would be done and the hours to be worked. This job was completed without incident in two days at Freehold Lumber Company and petitioner billed for the number of hours worked at the hourly rate.

Landman then showed petitioner some garage doors and overhead outside woodwork on a new addition to respondent's factory building which needed painting. This building is 90% brick and block, the remaining 10% being wood. Respondent

used the building in the manufacture of kitchen cabinets, counter tops and plastic forms. This factory addition had been constructed about a year prior, but some of the exposed woodwork, particularly a wooden overhang in front about 200 feet long, had never been previously painted. Petitioner looked over the work to be done, said he knew what to do, went to Grabow's to pick out the paint to be charged to respondent's account, and undertook to perform the labor for $2.50 per hour. Petitioner was to use his own brushes and equipment. Landman offered petitioner the use of respondent's ladders, but petitioner declined the offer, stating: "I have ladders of my own and I trust my ladders before any kind of ladder." Petitioner was under no orders as to when he would begin and when he would finish the job. The days when he would work and the number of hours were left to his own convenience. Other than for a general understanding as to the work to be done, petitioner was subject to no control as to the paints to be selected or the manner of their application. The work was of a limited and relatively short duration. There was no assurance of any further work by respondent when this special job was done. There was a possibility of more painting in Landman's home. While doing this job for respondent corporation and using his own ladders and equipment, petitioner suffered the injuries for which he filed his workmen's compensation claim.

Petitioner relies heavily on the fact that when he billed respondent after the accident for the hours of labor performed to the time of the accident, respondent sent him a check drawn on a payroll account and made deductions from the amount due him for social security and withholding taxes. Petitioner argues that this conduct constitutes a recognition by respondent of petitioner's status as an employee. While such deductions may have some probative value on the issue of whether an employment status existed, neither the making nor the failure to make such deductions is dispositive of an issue of this type. We are satisfied from the evidence that the payment of petitioner's bill in this manner ex post facto was

due to inadvertence by respondent's office staff and without any intention on the part of respondent of creating or recognizing an employee status. We have held that the real status of a person as an employee or independent contractor cannot be altered by any false label put on that status. Brower v. Rossmy, 63 N.J. Super. 395, 404 (App. ...


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