On appeal from the Division of Workers' Compensation, Department of Labor, CP Nos. 2002-9225 and 2003-7896.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Miniman.
Respondent V.A. Construction Company (V.A.) appeals from an order dated August 22, 2006, entered by the Division of Workers' Compensation which dismissed a claim petition by Carlos Maza (Maza) against respondent Christopher Bianciella (Bianciella), and found that Maza was in V.A.'s sole employ at the time of the subject accident. For the reasons that follow, we affirm.
On March 12, 2002, Maza filed claim petition 2002-9225 against V.A. in which he alleged that he had been injured on February 21, 2002, in the course of his employment by V.A. Maza also filed claim petition 2003-7896 against Bianciella, based on the same incident, and alleged that he had been injured in the course of his employment by Bianciella. V.A. and Bianciella both denied that they were Maza's employer.
V.A. filed a motion to enter default against Bianciella on the ground that Maza had been his employee at the time of the accident. V.A. also moved to dismiss the claim petition against it on the same basis. The compensation judge conducted a trial to determine the identity of Maza's employer when the accident occurred. At the trial, the judge heard testimony from Maza; Arthur Alves, the owner of V.A.; and Mario Bras, one of V.A.'s employees. Relying upon his Fifth Amendment right against self-incrimination, Bianciella did not testify.
However, V.A. introduced into the record certain documents obtained in discovery in a related Law Division action, in which The PMA Insurance Group (PMA), V.A.'s workers' compensation carrier, sought to recover from Bianciella the benefits it paid to Maza. In a letter dated November 20, 2002, Bianciella stated that Maza was working for him at his residence on February 21, 2002. Bianciella also gave a recorded statement to a PMA claim representative on March 27, 2003, in which he stated that on February 21, 2002, Maza was working for him at his residence and he was responsible for paying him. In addition, in a letter dated May 31, 2004, Bianciella stated that the men who were working at his residence on February 21, 2002, were employees of V.A. "but when they were at my house they were working directly for me." Bianciella wrote that he told the workers "what to do" and he was "responsible for paying for their work."
The compensation judge placed his decision on the record on August 22, 2006. The compensation judge found that V.A was Maza's sole employer, and entered the order dated August 22, 2006, which denied V.A.'s motion for default against Bianciella, dismissed the claim petition against Bianciella, and ordered V.A. to pay certain costs of this action. V.A. appeals and argues that the decision of the compensation judge is not supported by substantial credible evidence in the record.
The scope of our review in an appeal from a factual determination of a judge of compensation is strictly limited. The factual findings of the compensation judge must be affirmed if those findings "could reasonably have been reached on sufficient credible evidence present in the record." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We must consider the entire record and give "due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Id. at 599 (citing Johnson, supra, 42 N.J. at 162).
We are satisfied that there is sufficient credible evidence in the record to support the judge's determination that V.A. was Maza's sole employer at the time of the accident on February 21, 2002. Although V.A. relies heavily in this appeal on certain prior statements made by Bianciella, the judge did not abuse his discretion as fact finder in refusing to give any weight to those statements, particularly since Bianciella did not testify at trial. The compensation judge also had the discretion to reject the other testimony presented by V.A., and accept Maza's assertion that he was working for V.A. at the time of the accident.
We therefore affirm substantially for the reasons stated by the judge of compensation in the decision placed on the record August 22, 2006.