On appeal from the Superior Court, Law Division, Essex County.
Fritz, Furman and Deighan. The opinion of the court was delivered by Furman, J.A.D.
[192 NJSuper Page 178] At issue on this appeal is whether a prisoner in a county penal institution is eligible for worker's compensation, N.J.S.A. 34:15-1 et seq., for a work-connected injury. Plaintiff was on a work detail as a plumber's helper when he hurt his back in crossing a wooden plank, which gave way. As a plumber's helper he was compensated both by minimal wages and by
remission of time from his custodial sentence, pursuant to N.J.S.A. 30:8-28.1.
The issue arises in an action under the Tort Claims Act, N.J.S.A. 59:1-1 et seq., in which the county and corrections center pleaded the defense that workers' compensation was the exclusive remedy. Plaintiff denied his eligibility for workers' compensation. On motion for summary judgment, plaintiff's tort action was dismissed on the ground of the exclusiveness of his worker's compensation remedy under N.J.S.A. 34:15-8.
We reverse and remand. Recognizing that two reported decisions in this state, Brown v. Jamesburg State Home for Boys, 60 N.J. Super. 123 (Cty.Ct.1960), and Goff v. Union County, 26 N.J.Misc. 135 (W.C.B.1948), have barred workers' compensation for custodial institution inmates, defendants nevertheless argue that these decisions are without precedential effect because of the enactment in 1972 of N.J.S.A. 30:8-28.1, which was in effect at the time of plaintiff's accident.*fn1 N.J.S.A. 30:8-28.1 mandated that county penal institution inmates receive compensation for employment in productive occupations "in the form of cash or remission of time from sentence or both." Neither petitioner in Brown or Goff received financial compensation for his institutional work under N.J.S.A. 30:8-25, -26 and -27, enacted in 1917, which authorized but did not mandate payment of wages to prisoners for their services "upon work carried on" by the penal institution or any other county agency.
In our view the distinction that the petitioners in Brown and Goff were not paid for their institutional employments does not compel a result on this appeal contrary to those two cases. Rather, the issue on this appeal is more complex: Was there an employment relationship qualifying plaintiff for workers' compensation eligibility under N.J.S.A. 34:15-7? The burden of proof to establish eligibility rests upon a workers' compensation
claimant. Mahoney v. Nitroform Co., Inc., 36 N.J. Super. 116, 125 (App.Div.1955), rev'd on other grounds 20 N.J. 449 (1956). But plaintiff is not a workers' compensation claimant. In the unusual procedural context of this appeal the burden of proving plaintiff's eligibility rests upon defendants in asserting the affirmative defense of an exclusive remedy under workers' compensation.
An employment is a voluntary contractual relationship with the incidents of the right to hire and fire. The exclusion of penal inmates from workers' compensation coverage is reinforced by the statutory definitions in N.J.S.A. 34:15-36 equating employer with master and employee with servant. As we said in Kalnas v. Layne of New York Co., 173 N.J. Super. 492 (App.Div.1980):
Plaintiff's performance of services for defendant, corrections center, was not pursuant to a bargained for and voluntarily entered into contract of hire. The incidents of the right to hire and fire were lacking. Although plaintiff could have declined a work assignment, defendant, corrections center, could not have denied available work to him as a prisoner who was nondangerous and physically and mentally capable. Nor could it arbitrarily have discharged him or any other willing and qualified prisoner from a work detail.
The prevailing view elsewhere in the United States accords with our view that convicts are not eligible ...