On appeal from New Jersey Department of Labor, Division of Workers' Compensation Docket No. CP#2003-18494.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2008
Before Judges Payne and Alvarez.
Paragon Construction & Restoration, L.L.C., and its owner, Sanford Bredbenner (sometimes referred to herein as respondents), appeal from a determination by a Judge of Compensation that petitioner, Ignacio Flores, was an employee of Paragon at the time of his injury on April 23, 2003 and from the judge's denial of respondents' motion to add Bredbenner's homeowner's insurance carrier, Preferred Mutual Insurance Company, as a respondent. On appeal, Paragon and Bredbenner argue that Flores was not an employee of Paragon as defined by N.J.S.A. 34:15-36 and is not entitled to workers' compensation benefits. They argue additionally that Bredbenner's Preferred Mutual policy provided coverage to Flores as a domestic, and for that reason, Bredbenner's motion to add the carrier as a respondent should not have been denied.
Testimony with respect to the issue of employment was provided by Bredbenner, his wife Rebecca Pruitt, and Flores. Bredbenner, a contractor specializing in custom metal work including gutters, as well as roofing, operated through his company, Paragon. In the years 2001 and 2002, he employed Flores, first as a day laborer and then as a full-time employee performing manual labor, working from approximately April through November of each year and receiving paychecks drawn on Paragon's account. During the remainder of the year, Flores returned to his native country, Mexico, where his family resided.
According to Bredbenner, Flores was principally employed in construction work that Paragon was performing as a subcontractor at the residence of Kirk Kellogg in Summit. Workers' compensation insurance for that job was provided through the general contractor, Don Palumbo. Flores testified that he worked at various locations, including Bredbenner's house, and that he had assisted in a home renovation project there, as well as in the installation of gutters at the residence and other work sites.
Upon Flores' return to the United States in April 2003, he contacted Bredbenner seeking further employment. Bredbenner testified that, at the time, he had no pending construction contracts, but upon being informed that Flores needed money for food, he agreed to hire Flores for two days to do yard cleanup at his home. Flores was to be paid $100 per day in cash. Pruitt corroborated this version of events, stating that she was annoyed that her husband had agreed to hire Flores, even for this short period, because money was tight as the result of lack of wintertime work. In contrast, Flores testified that he had called Bredbenner to request work, and that Bredbenner had agreed, without qualification.
On April 22, 2003, Bredbenner drove to Red Bank in his Paragon truck to pick up Flores, and he returned with him to Bredbenner's home in Holmdel, where Flores did yard work. Flores was not paid at the end of the day. A similar routine was followed on April 23. According to Bredbenner, shortly after 9:00 a.m., he loaded his truck with a twenty-foot piece of copper gutter that he planned to install at a friend's house, thereby completing the replacement of gutters at the house, while charging the friend only for materials and not labor. Bredbenner testified that Flores offered to help him with the work, and that he accepted the offer. While attempting to install the gutter, Flores' ladder slipped, causing him to fall, breaking both arms, one leg and his nose. Pruitt confirmed her husband's version of events, but stated that the work commenced in the afternoon. Additionally, Pruitt testified that materials were purchased for $1,800 and did not mention that her husband had absorbed $500 of the cost, as Bredbenner had claimed. Testimony was unclear whether the cost of the materials was charged to Paragon or whether Bredbenner purchased them with cash supplied by his friend.
Again, Flores' version of events differed. He stated that on April 23, three laborers were present at the Bredbenner house. Although two remained with Pruitt, Flores testified that he was requested by Bredbenner to accompany him in his company truck to the friend's house. Once there, they commenced installation of gutters on all sides of the house. The accident occurred, after lunch, as Flores sought to place his ladder on slippery ground at the back of the house. Flores was never paid for either day of work.
At the conclusion of this aspect of the trial, the Judge of Compensation ruled that Flores was acting in the capacity of an employee of Paragon when his injuries occurred. The judge also found that Bredbenner was responsible for payment of benefits as owner of Paragon, which did not carry workers' compensation insurance. Although the judge did not overtly discuss the credibility of the witnesses, it was clear from his decision that he found Flores to be the most credible of the three persons who testified. The judge found:
[I]n petitioner's view, he was doing the same work under the same conditions as before, and this is legally correct.*fn1 He was directed by the respondent, taken to the appropriate jobs by respondent, paid by respondent and told what to do. He was driven to the next job where he was hurt in Mr. Bredbenner's truck. Mr. Bredbenner supplied the materials. Mr. Bredbenner gave him the instructions as to what to do there, and, again, because of petitioner's language limitations, there is no clear proof that he understood anything was different from his usual employment.
The law sets numerous standards to determine employment and who the employer is. Those include control, direction to the petitioner as to what to do and how to do it, supplying of materials, being hired, ability to terminate the petitioner and to give him complete instructions on how to do the job.
All of these factors were in this case, and they were all in existence with reference to ...