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Spreen v. Curb Con Inc.

January 4, 2008


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 1997-43283, 1998-35834, 1998-37679.

Per curiam.


Argued Telephonically October 11, 2007

Before Judges R. B. Coleman and Lyons.

Petitioner John Spreen appeals pro se from the July 14, 2006 order denying his motion before the Division of Workers' Compensation to set aside the Division's May 13, 2005 order.*fn1

After he had decided the matter from the bench, Workers' Compensation Judge Andrew M. Smith, Jr. issued a written opinion setting forth his findings and conclusions. He summarized his determination as follows: "I determine that Petitioner John Spreen was not an employee of either Mr. or Mrs. Polito [sic] or of any corporations that they might have owned when he was injured on July 4, 1997. He was an independent contractor and therefore ineligible for workers compensation benefits." We affirm substantially for the reasons articulated in Judge Smith's written opinion.

On July 4, 1997, petitioner sustained severe injuries when he fell from a ladder adjacent to the roof of a residence he was painting in Barnegat. The residence was owned by Susan Pulido, who resided in the home with her husband, Frank Pulido. Frank Pulido's name was not listed on the deed of the property. The Pulidos are the principals of two incorporated businesses, Curb Construction, Inc. (Curb Con.) and S.P.F. Inc. (S.P.F.). Curb Con. is in the business of installing curbs, sidings, factory floors, foundations, and sidewalks. S.P.F. essentially handles the payroll for Curb Con.

Petitioner urges that he was hired by one of the Pulidos' corporations and then assigned to paint the Pulidos' home. After hearing testimony from the parties, the compensation judge concluded that "[t]here is absolutely no evidence that the painting of Mrs. Pulido's house was in any way connected to the curbing business of Curb Concrete [sic] or SFP Inc. Nor is there any evidence that Curb or SFP derived any benefit from the house being painted." Pulido was not a professional painter and did not perform that type of work for any of the respondents. On May 13, 2005, Workers' Compensation Judge Andrew Smith, ruling from the bench, assessed the petitioner's relationship with the Pulidos as follows:

[H]ere, we have a situation where the [Pulido] is basically the homeowner . . . . There's been quite a bit of discrepancy in the testimony between his recollection and that of Mr. Laux. And not sure that I have to address that issue.

I have found Mr. Pulito [sic] to be credible. I don't think that he - I think what happened here is that he had a conversation with Mr. Spreen, and asked Mr. Spreen, I find that he did, and refer [sic -infer] that further from the testimony here, that he had a conversation with Mr. Spreen at some time and asked him to do some work on his house, and to do some painting on the house, and he, Mr. Spreen, told him he wasn't available to do it at the time that it was to be done. But that he would spread the word around and he did spread the word around and spoke to, spoke to Mr. Laux, and Mr. Gallagher, and Mr. Laux and his father and Mr. Gallagher showed up and began doing the work.

Mr. Spreen may have been on the premises, may have stopped by there, as Mr. Laux said he did, Mr. Pulito [sic] really couldn't - never saw him there. But that, I just don't find enough - I don't believe the Petitioner's satisfied the burden here of showing that there's an employment relationship existed here. That this was out of the Pollack case, the landowner who hires someone is not the employer of that person. There has to be some kind of a, has to be engaged in some sort of a business. And if Mr. Pulito [sic] were a, in the painting business, I think that the Petitioner might have a stronger case, but where there's a private home and the owner of the home hires some people to fix it, that's not enough to create any more than a casual employment situation which is exempt under the Workers Compensation Act.

I'll dismiss the last of these complaints. Thereafter, petitioner moved for reconsideration but, based on the arguments, previous trial testimony, and documentary evidence, the judge issued his July 14, 2006 written opinion and order upholding his previous dismissal of petitioner's claim. In reaching his decision, the judge quoted extensively from Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397 (App. Div. 1992).

In Pollack, the owner of a clothing business decided to build an addition onto an existing building so as to add a dry- cleaning service. Id. at 400. The owner hired a person to install the piping and dry-cleaning machinery who, in turn, employed another individual to assist in the task. Ibid. At some point during installation, the assistant fell from a ladder, injuring himself. Id. at 401. Like the case currently before the court, the petitioner in Pollack asserted he was entitled to benefits under the Workers' Compensation Law. Ibid.; see N.J.S.A. 34:15-36. The Pollack court followed the reasoning of Gerber v. Sherman and Arrow Constr. Co., 120 N.J.L. 237 (1938) and denied petitioner's claims:

where, as here, a landowner undertakes to erect a building upon his lands, and lets the construction work to independent contractors in several parts, he is not a "contractor" within the purview of the cited statute. And this is so even though he supervises the work of the individual contractors with a view to securing conformance to stipulated plans and ...

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