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Clark v. Grand Slam

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 5, 2007

KEVIN CLARK, PETITIONER-APPELLANT,
v.
GRAND SLAM, USA, RESPONDENT-RESPONDENT.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 2005-18961.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 4, 2007

Before Judges Lintner and Seltzer.

Petitioner, Kevin Clark, appeals from an October 5, 2006, order dismissing his workers' compensation claim petition. The dismissal was premised on a finding by the judge of compensation that petitioner was an independent contractor who was not employed by respondent, Grand Slam USA, and therefore, had no remedy pursuant to the Workers' Compensation Act, N.J.S.A. 34:15-1 to 128.5. We affirm.

Petitioner was injured while acting as a referee at facilities on which respondent conducted a family entertainment center. The nature of the relationship between plaintiff and respondent was explored at a hearing conducted by Gerald J. Eak, a judge of compensation. The judge analyzed the substantially undisputed facts in accordance with the two tests developed to determine whether an individual is an employee or an independent contractor. See Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 407-09 (App. Div.) (describing the "control test" and the "relative nature of the work test"), certif. denied, 130 N.J. 6 (1992). The judge faithfully and comprehensively applied both tests to the facts as he found them and concluded that petitioner was an independent contractor to whom the benefits of the Workers' Compensation Act were unavailable.

Petitioner asserts that since the facts were uncontested, we should make an independent determination of petitioner's status based on those facts. See e.g., Sloan v. Luyando, 305 N.J. Super. 140, 146-47 (App. Div. 1997). We need not determine if that is appropriate in this case or if, since the undisputed facts may support differing conclusions, see e.g. Lima & Sons, Inc. v. Borough of Ramsey, 269 N.J. Super. 469, 477-78 (App. Div. 1994), we should afford deference to the judge's conclusion because it is not inconsistent with the evidence. Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

We need not make that determination because we are in full agreement with both Judge Eak's analysis and the result he reached. Accordingly, we affirm his decision substantially for the reasons given by him in his oral opinion of October 5, 2006.

Affirmed.

20070705

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