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Garcia v. Aerial Sign Co.

January 24, 2007

OSCAR C. GARCIA, PETITIONER-APPELLANT,
v.
AERIAL SIGN COMPANY, INC., RESPONDENT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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