On appeal from Judgment of the State of New Jersey, Department of Labor, Division of Workers' Compensation.
Approved for Publication December 26, 1996.
Before Judges Shebell, P.g. Levy and Braithwaite. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
Petitioner, Michael Kertesz, appeals from the dismissal of his workers' compensation claim based on a finding that he was not an employee of respondent, Barry L. Korsh. Petitioner was injured while installing sheetrock on November 6, 1990. Respondent, however, denied that petitioner was an employee. We reverse.
According to the testimony of petitioner, on November 6, 1990, he fell while working on a job site to which he was directed by respondent, in Unit 16 of the Kips Ridge Townhouses in Verona. Petitioner testified that the day before the injury, respondent requested he go to work at that location to finish a sheetrocking job. Respondent was to pay petitioner $120 per day. He told petitioner to bring his tools and truck. There was no writing or insignia on petitioner's truck. Petitioner worked for respondent "about three, four times a month." Petitioner had an independent business of installing sheetrock and employed others to work in his unincorporated business, but took this work with respondent because business was slow.
Petitioner went to the job site with Robert Pastor, another dry wall worker. Pastor testified: I spoke to "my employer," Barry Korsh, and was told to "call up Mikey [petitioner] and go with him to finish up the job." Petitioner and Pastor were each paid separately by personal checks from respondent. Petitioner, who was not fluent in English, testified through an interpreter that Pastor was considered the foreman and that Pastor told him what to do. Petitioner also testified that he took the job himself, rather than sending an employee, because work was slow. He did not work out of the union hall, nor did he receive a steady paycheck from any other source. Petitioner had a Workers' Compensation Insurance policy, naming himself as the insured, not a corporation or business entity.
Pastor, upon questioning by the Judge, stated that respondent was putting up sheetrock on the whole project and that "I was working for Barry [respondent] and I was doing this job and then he needed someone ..., and we gave him [petitioner] a call." There were five people installing sheetrock at the job. Pastor stated it was respondent's responsibility to make sure that there were enough workers at the site to complete the job. The sheetrock, nails and supplies needed were provided by respondent. Unit 16 consisted of four levels. Petitioner explained it was customary for the builder to supply the large scaffold, the planking and the horses.
The Judge, in rendering his decision, stated: petitioner "is a sheetrocker. He gets a call, puts up sheetrock supplied by the contractor, he brings his own tools because he's comfortable with it. You need it. He's in the business." The Judge held
I can't make a finding that [petitioner] is an employee of [respondent]. I can't, since [the attorney for respondent] didn't produce [respondent], make any negative findings about [respondent].
Mr. Pastor ... was less than believable as a witness. I find Mr. Pastor was highlighting certain facts and was testifying to attempt to help [petitioner]. [Petitioner] does not need that type of help. He's a good man. Unfortunately, he's not entitled to Workers' Compensation benefits as being an employee of [respondent].
I find that from [petitioner's] own testimony he was an honest, truthful, and a nice man who was unfortunately injured and is unable to collect Workers' Compensation benefits because he thought more of ...