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Garcia v. Aerial Sign Co.


January 24, 2007


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation.

Per curiam.


Submitted December 19, 2006

Before Judges R. B. Coleman and Gilroy.

This is a workers' compensation case. Petitioner, Oscar Garcia,*fn1 appeals from the order of dismissal entered in the Division of Workers' Compensation (Division) on April 28, 2006, dismissing the dependency claim petition that he had filed on behalf of himself; his wife and mother of decedent, Maria Amalia Silva Aldana; and decedent's two sisters, Andrea and Natalia, following the death of his son, Oscar Mauricio Garcia. We affirm.

Decedent was a pilot who flew banner airplanes over New Jersey beaches during the summer months. Decedent died on July 1, 2002, when his airplane crashed in Howell Township shortly after taking off from the Monmouth Executive Airport. At the time of his death, decedent was operating the airplane within the scope of his employment with respondent, Aerial Sign Company. Decedent was not married and had no children. On August 12, 2003, the father of decedent, Oscar C. Garcia, filed a dependency claim on behalf of himself, his wife, and decedent's two sisters. Respondent conceded that decedent's death was work-related, but denied that the claimants were dependents of decedent.

Hearings on the petition were conducted before Compensation Judge Anthony J. Minniti on February 7, 2005, June 13, 2005, and July 25, 2005. On February 7, 2005, petitioner voluntarily dismissed decedent's sisters from the petition. Testifying on behalf of petitioner were: petitioner; Maria, his wife and decedent's mother; Adriana Garcia, decedent's sister; and Juliana Abustamante and Natalia Rodriguez, friends of Adriana.

Testifying on behalf of respondent was Brian Borderson, respondent's Director of Finance. On April 27, 2006, Compensation Judge Anthony J. Minniti entered a written decision dismissing the balance of the petition, determining that petitioner had failed to prove that he and his wife were dependents of decedent, N.J.S.A. 34:15-13f. In his decision, Compensation Judge Minniti determined that the claim was not credible:

I have had the opportunity to review the testimony of the witnesses as they testified and to review the issues presented.

I find that there existed a convenient financial arrangement between the decedent and his father, wherein the father could easily withdraw[] money in Columbia at a moment[']s notice after it was deposited either in New Jersey or Miami. Instead it is alleged that the son would give thousands of dollars to friends and acquaintances to bring back to Bogota, Columbia[,] from time to time in order to assist the family. I find this testimony not to be intuitively appealing.

Moreover, there is neither a paper trail of the money coming to the decedent nor is there a paper trail of the money being deposited in Columbia once the father received the cash. There is no proof of how or where the decedent earned these sums of money. There is insufficient proof of how this money made the family financially dependent on their son.

I am convinced that during the decedent's tenure with the respondent he earned $357.92. He may have also earned some per diem money with respondent[,] but it would have been minimal as described [by] Mr. Broderson, the CFO of Aerial Sign Company.

There has been no adequate rebuttal of his testimony.

There are very serious credibility problems with the petitioner's case. Although the witnesses would purport to have extremely close relationships with the decedent, there was an incredible lack of knowledge as to the decedent's whereabouts and employment. Also there is a difficulty in understanding why the decedent would give such large sums of cash to individuals to take to his parents when there was a much easier and efficient way of transferring funds.

There is little evidence presented to demonstrate how the parents relied on this money which was allegedly sent by their son to maintain their accustomed mode of living. There were so many inconsistencies in the testimony of the witnesses and lack of specificity regarding the true nature of the family budget and the knowledge each witness had as to the earnings and the whereabouts of the decedent during the years in question.

Although [the father] is an accountant[,] there was absolutely no tax record, ledger entries, receipts or other paper trail offered by Mr. Garcia as to family needs, budgets[,] and as to what he specifically used these proceeds for as required by the statute.

In summation, I find that the [parents'] credibility was such that I cannot reasonably determine how much money was actually given to [] them by the decedent and how that money was used under the requirements of the statute and case law to support a dependency claim.

The petitioner has not sustained the burden of proof based upon the standard used to determine dependency or partial dependency in this case[,] and the case is dismissed with prejudice.

A confirming order of dismissal was entered on April 28, 2006. On appeal, petitioner argues that the compensation judge erred: 1) by refusing to admit seven ex parte affidavits into evidence from individuals who had allegedly transported money from decedent to his family in Colombia; and 2) by dismissing the dependency claim for failure of petitioner to prove that he and his wife qualified as dependents of the decedent under the statute, N.J.S.A. 34:15-13f.

"Courts generally give 'substantial deference' to administrative determinations." Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999) (quoting R & R Mktg., L.L.C. v. Brown- Forman Corp., 158 N.J. 170, 175 (1999)). In workers' compensation cases, the scope of appellate review is limited to

"'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Deference must be accorded to the factual findings and legal determinations of the Judge of Compensation unless they are "'manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994) (quoting Rova Farms Resort, Inc., v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 140 N.J. 277 (1995). "Accordingly, if in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings, even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)).

We have considered each of the issues presented in light of the record, applicable law, and the arguments of counsel, and we are satisfied that neither of them is of sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Compensation Judge Minniti in his thoughtful written opinion of April 27, 2006. Notwithstanding, we add the following comments.

Petitioner argues that Judge Minniti erred when he excluded several affidavits of individuals who had allegedly transported money from decedent to his parents in Colombia, contending that the rules of evidence are not to be strictly applied in workers' compensation hearings. Although we agree that a court of compensation is not bound by the rules of evidence, N.J.S.A. 34:15-56 provides in pertinent part: "At such hearing, evidence, exclusive of ex parte affidavits, may be produced by both parties . . . ." Because the statute specifically excludes ex parte affidavits, we determine that Compensation Judge Minniti correctly barred admission of the ex parte affidavits.


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