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Perry v. New Jersey State Racing Industry

September 5, 2007

RANDOLPH PERRY, PETITIONER-RESPONDENT,
v.
NEW JERSEY STATE RACING INDUSTRY, RESPONDENT-APPELLANT, AND RANDOLPH PERRY, PETITIONER-RESPONDENT,
v.
ROBERT HOROWITZ STABLE, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Bergen County 05-2948.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 14, 2007

Before Judges Stern, A. A. Rodríguez and Sabatino.

This appeal requires us to construe the meaning of the term "horse racing industry employee" as used in N.J.S.A. 34:15-131, a section of the New Jersey Horse Racing Injury Compensation Board Act (the Act), codified at N.J.S.A. 34:15-129 to -142.

The New Jersey State Racing Injury Compensation Board (the Board), appeals from the judgment of the Division of Workers' Compensation (the Division), finding that Randolph Perry is a "horse racing industry employee," and thus, entitled to receive workers' compensation benefits from the Board for injuries he sustained while working at a stable at the Meadowlands Racetrack. Accordingly, the Division dismissed another claim petition filed by Perry against Robert Horowitz Stable (Horowitz) for the same accident because coverage under the Act is primary. N.J.S.A. 34:15-135(d). We reverse.

These are the salient facts. Perry has been a trainer of horses for forty-seven years. He is licensed by the New Jersey Board Racing Association and Trotting Association as a trainer and as an owner. He trained horses for various owners, charging them approximately $50 a day. He gets paid on a monthly basis. According to Perry's racing stall application for the 2003-2004 racing season; he rented five stalls at the Meadowlands Racetrack. He trained several horses, including two of which he was a partial owner (twenty-five percent). His wife Donna Perry, Ken Iulo and K.T. Sacado, owned the three other horses that he trained. In addition, Perry trained a horse belonging to Horowitz that was in Perry's rented stall at the time of the accident. Perry testified that he spent approximately seventy-five percent of his time caring for horses he partially owned. The other twenty-five percent was spent training horses owned by others.

On January 19, 2004, the weather was cold, wet and icy. As he was opening the barn door where the horses he trained were stalled at the Meadowlands Racetrack, he stepped on "a patch of ice under his feet." According to Perry, he "just flipped over, because the door was like frozen closed." Perry sustained a serious fracture. He underwent an open reduction internal fixation procedure. As a result of the accident, Perry was unable to walk without crutches and could not work. He underwent additional surgeries to the opposite knee.

Perry filed claim petition 05-2948 with the Division against Horowitz. Horowitz answered, admitting Perry was in his employ on the day of the accident, but denied that the accident arose out of and during the course of this employment. Six months later, Perry filed claim petition 05-21819 against the Board, alleging that he sustained injuries on January 19, 2004, during the course of employment as a "horse racing industry employee." The Board answered, and objected to the claim arguing that Perry was not a "horse racing industry employee."

Following a hearing, the Judge of Compensation found that Perry was a "horse racing industry employee." Thus, the Board was held responsible for all workers' compensation benefits arising out of the January 19, 2004 accident. The judge dismissed the claim against Horowitz.*fn1 Perry did not cross-appeal that dismissal. The Board moved for a stay of judgment. The judge denied the motion. On appeal, the Board contends that reflecting on the limited purpose and legislative history of the Act, Perry did not qualify as a "horse racing industry employee" because he was a self-employed independent contractor. We agree.

We begin our analysis by focusing on the legislative findings and declarations:

The Legislature finds and declares that, whereas current law already requires virtually all employers to provide for the payment of workers' compensation benefits to injured employees, because of the unique nature of the horse racing industry, difficulties have arisen in ensuring that coverage is provided to employees. For example, out-of-State horse owners are sometimes unaware of their obligation to provide such coverage, or because a jockey may ride the horses of more than one owner, there may be confusion as to who the responsible employer is. As a result, serious injuries have been sustained for which there is no coverage.

It is, therefore, in the public interest to ensure that workers' compensation coverage is available to persons employed in the thoroughbred and standardbred horse racing industries in New Jersey by collectively securing workers' compensation insurance coverage for such persons, the costs of which shall be funded by the horse racing industry, and the assessments for funding that coverage shall be calculated separately ...


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