Before Judges Havey, Keefe and Collester.
The opinion of the court was delivered by: Keefe, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Department of Labor, Division of Workers' Compensation.
Respondent Kathryn Hensler appeals from a final judgment of the Division of Workers' Compensation finding that she was personally liable for a judgment entered in favor of petitioner, Jeffrey R. Macysyn, stemming from a work-related injury that occurred on December 4, 1994. Kathryn's husband, Joseph E. Hensler, Jr., was also found personally liable, but has not appealed.
The appeal requires that we decide two issues not heretofore addressed by an appellate court in this State:
whether the Division of Workers' Compensation has jurisdiction to determine personal liability pursuant to N.J.S.A. 34:15-79 (hereafter §79), and, if so, whether the evidence supports the Workers' Compensation judge's finding that Kathryn Hensler was "actively engaged" in the corporate business of Lawrenceville Hardware within the meaning of §79. We hold that the Division does have jurisdiction over the subject matter of personal liability under §79 of the statute, but the evidence does not support a finding that Kathryn Hensler was actively engaged in the corporate business so as to justify a finding of personal liability as to her.
Petitioner was employed by Lawrenceville Hardware, a corporation, when, in the course of his employment, he sustained an injury to his right eye. The injury ultimately rendered him blind in that eye. He filed a claim petition against Lawrenceville Hardware seeking compensation for his injury. It was soon discovered that his employer was uninsured. The claim petition was then amended to name Joseph E. Hensler, Jr., president of the corporation, and Kathryn Hensler, secretary, as respondents. The Uninsured Employer's Fund paid medical and temporary disability benefits. The Fund, however, does not pay permanent disability benefits. N.J.S.A. 34:15-120.2; see also Bashir v. Commissioner of Dep't of Ins., 313 N.J. Super. 1, 6 (App. Div. 1998), aff'd, 158 N.J. 15 (1999).
The day before petitioner filed his amended claim petition naming the Henslers as respondents, the Henslers filed a petition in bankruptcy. Petitioner was listed as a creditor. Petitioner then filed an adversary complaint, seeking to have his workers' compensation claim against Joseph Hensler, Jr. non-dischargeable. Kathryn Hensler was not named in the complaint. Notwithstanding petitioner's opposition to Mr. Hensler's discharge, the bankruptcy court issued a "Discharge of Debtor" order in favor of both Henslers. The discharge order was filed before the final judgment was entered by the Workers' Compensation judge. We are informed that the bankruptcy court has before it the question of whether the judgment entered in the Division of Workers' Compensation violates its discharge order. In view of our ruling on this appeal, the decision in the bankruptcy matter will not moot our holding in this matter.
The focus of the dispute before us is on that part of the hearing conducted in the Workers' Compensation court concerning the question of whether Kathryn Hensler, the Secretary of Lawrenceville Hardware, was "actively engaged in the corporate business" in the context of §79 and what court has the jurisdiction to decide the issue.
The statute provides in relevant part:
An employer who fails to provide the protection prescribed in this article shall be guilty of a disorderly persons offense and shall be guilty of a crime of the fourth degree if such failure is willful. In cases where a workers' compensation award in the Division of Workers' Compensation of New Jersey against the defendant is not paid at the time of the sentence, the court may suspend sentence upon that defendant and place him on probation for any period with an order to pay the delinquent compensation award to the claimant through the probation office of the county. Where the employer is a corporation, the president, secretary, and the treasurer thereof who are actively engaged in the corporate business shall be liable for failure to secure the protection prescribed by this article. [N.J.S.A. 34:15-79].
The evidence before the Workers' Compensation judge concerning the operation of the corporation and Kathryn Hensler's involvement in it can be briefly summarized. Lawrenceville Hardware was founded in 1954 by Joseph Hensler Sr. In 1977 or 1978, Joseph Jr. was made president, and Kathryn Hensler was made secretary of the corporation several years later. Kathryn Hensler was a full-time teacher and also worked nights and weekends selling cosmetics. She received no salary from the corporation. Joseph Jr. testified that he and his father "basically ran the business together." He also said that, other than asking him why the corporation was borrowing money before she executed loan documents in her capacity as secretary or inquiring generally how the business was doing, his wife did not have any "duties within the operation of the store itself" and never made "management decisions." Further, his wife never made any decisions with respect to personnel or the maintenance of insurance. The corporation's insurance agent also testified that he never discussed anything other than personal auto insurance with Kathryn.
Based on the evidence before her, the Workers' Compensation judge made the following findings with respect to ...