On appeal from the New Jersey Division of Workers' Compensation, CP 98-39915.
Before Judges Baime*fn1, Wallace, Jr. and Carchman.
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 15, 2001
This is a workers' compensation appeal. Petitioner Richard Auletta appeals from an order for judgment in favor of respondent Bergen Center for Child Development. The judge of compensation concluded that petitioner was an independent contractor and not an employee of respondent. On appeal petitioner contends he should be considered an employee under either the right to control test or the relative nature of the work test, and that his injury arose out of and was in the course of the employment. We agree and reverse.
The evidence showed that respondent was a school for special education students. Petitioner was employed by respondent as a school psychologist for seven years. He worked two days a week, Tuesdays and Thursdays, and was paid $65.00 an hour. Petitioner worked the regular school hours, 8:30 a.m. to 2:30 p.m. He worked the same days and hours the entire seven years he was employed by respondent. At the end of each month he would submit a bill to respondent for the time that he worked the prior month. Respondent issued a 1099 federal tax form to petitioner for each of the seven years he was employed at the school. Petitioner also worked as a school psychologist one day a week at the French Town Board of Education and maintained a private practice where he worked three or four days a week.
Petitioner was not under contract at the school.
At trial, petitioner testified that his primary responsibilities at the school were to conduct individual and group psychotherapy. However, he also attended field trips, cooked, set up chairs, and participated in games at the school. Although these latter activities were not included in petitioner's job description, he believed the activities were implied and expected of him.
At the beginning of the school year, Lefebvre, the school's director, would give petitioner a list of students that he was expected to work with during the school year. Each morning, Lefebvre would orally communicate to petitioner whether there were any students in crisis and direct petitioner to address those students' concerns. Petitioner stated:
the director gives the directives. She tells me how she wants a child to be treated. She tells me about any decisions that have been made since I was there last. She tells me who to call, what was decided, and what to carry out. . . . I learned from the beginning that if you wanted to work in this facility, that's the way the rules were.
Lefebvre testified she was a hands on director who was at the school everyday and strived to be knowledgeable about the school's daily events. She agreed that she directed petitioner to see specific students who were in crisis since the last time plaintiff was at the school, but that she would not direct the treatment plan. Lefebvre acknowledged there was a great deal of verbal communication with petitioner regarding the well being of the students.
Lefebvre agreed with petitioner that respondent supplied all materials used by petitioner at the school. These materials included various psychological tests, clerical supplies, pads of paper, pens, toys, and therapeutic games. However, it was up to petitioner to determine what particular test should be used for a specific student.
Petitioner was injured on November 5, 1998 during a staff/student tournament football game. The gym teachers would organize athletic activities for the students during the school year. Each sport lasted four to six weeks. At the end of this time period a "tournament day" would be held for that particular sport. On tournament day, the academic day would end around 9:30 or 10:00 a.m., and the tournament activities would occur during the remainder of the day. Tournament day would conclude with the students competing against the staff.
Petitioner claimed that tournament day provided a therapeutic environment for the students and fostered trust between the students and faculty. The games allowed students to learn fair play, competition, and sportsmanship. In addition, the games allowed students to see petitioner in a light other than as a psychologist. He believed the games enabled him to develop stronger bonds and a greater sense of trust with the students. Petitioner was not asked to participate in the tournament day games, but he believed "every[one] [was] ...