On appeal from the Division of Workers' Compensation.
Furman, Dreier and Shebell. The opinion of the court was delivered by Furman, P.J.A.D.
Petitioner appeals from dismissal of his workers' compensation petitions after a trial limited to the issues of petitioner's employee status and eligibility for workers' compensation. The dismissal was on the ground that petitioner was an uncompensated volunteer at the time of his accident and injury.
Although Oscar Austin and Harold Kennedy are respondents on the appeal, neither has filed a brief or participated. At oral argument petitioner acknowledged that he was seeking only an adjudication that respondent Tryon Trucking Co. (Tryon) was his employer and liable to him in workers' compensation for a work-connected accident and injury. We reverse and remand.
The workers' compensation judge did not state a fact finding that petitioner was an employee of Tryon while driving a tractor-trailer hauling loads for Tryon. Resolution of that issue was not necessary for dismissal on another ground. But a fact finding of petitioner's status as an employee of Tryon is implicit in his oral opinion. He attached credibility to petitioner's testimony and not to that of Tryon's dispatcher Angelo Spadaccino and terminal manager Carl Rother.
Austin owned the tractor-trailer. He leased it exclusively to Tryon. Tryon certified petitioner as a qualified driver. Only petitioner drove Austin's tractor-trailer for Tryon. Tryon's dispatcher in Morrisville, Pennsylvania, phoned orders to petitioner in Trenton to pick up loads, where to pick them up and where to deliver them. Petitioner was required to be on standby, even without an immediate load to haul. He was barred from hauling for any other carrier except on return trips after delivering a load for Tryon, and then only after first checking with any nearby Tryon terminal for an available return load. A placard with Tryon's I.C.C. license number was posted on the door of the tractor. Tryon advanced funds for fuel and tolls. Tryon made weekly payments to Austin of 75% of the gross payments received by it from customers for deliveries made by petitioner. Austin retained 45% and paid petitioner 30%. Petitioner was subject to suspension or termination by Tryon.
We agree with the workers' compensation judge's evaluation that "this case falls squarely within the four corners of" Tofani v. Lo Biondo Brothers Motor Express, Inc., 83 N.J. Super. 480 (App.Div.1964). Tofani held that the owner of a tractor who leased it exclusively to a trucking company and drove it himself hauling loads for the trucking company was an employee of the trucking company eligible for workers' compensation, notwithstanding the contract between the parties designating the owner-lessor as an independent contractor.
The critical test according to Tofani is that of right to control the owner-lessor in his role as driver. On the appeal before us, the workers' compensation judge found ample indicia of a right to control by Tryon, including the right to direct where and when petitioner hauled loads, the right to his exclusive services and the right to suspend or terminate him.
Two factual distinctions from Tofani are immaterial. Petitioner was not the owner-lessor, but he stood in the shoes of Austin, to whom, if he had been the driver, Tofani would have
applied. Austin neither retained nor exercised any right of control over petitioner's truck driving operations for Tryon. Austin owned both the tractor and the trailer, whereas the owner-lessor in Tofani owned only the tractor and the trucking company owned the trailer. In both cases the trucking company as lessor furnished the tractor. Furnishing of the equipment is one of four factors noted in Tofani at 486 including right to control and right to terminate, "any single one [of which] is virtually proof of the employment relation."
We recognize that the workers' compensation judge stated at the conclusion of his opinion, ". . . the Court does not consider what the Court's opinion would have been, had Petitioner been paid for his efforts." That comment plainly applies to the services rendered by petitioner at the time of his accident and injury, which the judge below found to be voluntary; in our view it in no way retreats ...