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Flores v. Paragon Construction & Restoration


September 15, 2008


On appeal from New Jersey Department of Labor, Division of Workers' Compensation Docket No. CP#2003-18494.

Per curiam.


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 Paragon and Mr. Bredbenner.

So, therefore, it is clear to me that petitioner was in their employ. There was nothing to contradict the fact that Mr. Bredbenner hired petitioner, drove him to the job in his business truck, told him how to do the job, what to do, paid him directly, supplied too[l]s and materials and had a history of hiring him in the past in the same manner that petitioner was hired in the year of the accident.

The judge noted as additional factors the fact that Bredbenner had picked up additional employees when picking up Flores and that Flores had previously, in periods of admitted employment, helped in installing gutters. A further finding that Flores was paid for his two days' work by Paragon is not supported by the record.

Because the judge found that Flores' injures were covered by workers' compensation, he denied respondents' motion to add Preferred Mutual as a respondent.

On appeal, Paragon and Bredbenner challenge the determination of the Judge of Compensation that Flores was an employee of Paragon at the time of his accident, claiming instead that he was a volunteer who offered to assist Bredbenner in a task that Bredbenner had undertaken "[o]ut of the kindness of his heart" to assist a neighbor and friend with leaky gutters. As such, respondents claim, Flores was engaged in "casual" employment for which workers' compensation benefits are unavailable.

We disagree with appellants' position. We regard the judge's findings of fact, with the one exception that we have noted, to have been supported by competent evidence in the record, Sager v. O.A. Peterson Const. Co., 182 N.J. 156, 163-64 (2004); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965), and his conclusions of law to have been soundly based upon existing statutes and precedent. N.J.S.A. 34:15-36 defines an employee as "synonymous with servant, and includes all natural persons .

. . who perform service for an employer for financial consideration." In contrast, casual employment is statutorily defined, "if in connection with the employer's business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring." Decisions uniformly hold that the provisions of the Workers' Compensation Act are to be "liberally construed in favor of employees to further its beneficent purpose." Valdez v. Tri-State Furniture, 374 N.J. Super. 223, 232 (App. Div. 2005). As the federal courts have noted, this liberal construction includes consideration of an injured worker's status as an "employee." Marino v. Industrial Crating Co., 358 F.3d 241, 244 (3d Cir. 2004) (citing cases). We have held:

When determining whether an individual should be considered an employee, the judge must consider all of the circumstances bearing on the relationship of the parties. Smith v. E.T.L. Enterprises, 155 N.J. Super. 343 (App. Div. 1978). The judge should not define "employee" mechanically or restrictively, Marcus v. Eastern Agricultural Ass'n, 58 N.J. Super. 584, 602 (App. Div. 1959), but should construe the term liberally "in order to bring in as many cases as possible within the coverage of the [workers' compensation] act." Smith, supra, 155 N.J. Super. at 349.

[Fernandez-Lopez v. Jose Cervino, Inc., 288 N.J. Super. 14, 23 (App. Div. 1996).]

We have also held:

[W]henever there is a dispute as to whether there is in fact an employment relationship encompassed by the act, and particularly where the circumstances of the relationship depart from traditional modes, the resolution of the question requires a factual analysis of all of the indicia of the relationship in order to determine if it is truly that of master-servant. And in order to constitute such a relationship, it must be characterized by such elements as the employer's supervisory power, his right to control the activities of the employee, his right to terminate the relationship, his payment to the employee of regular wages for services, and his provision of tools and equipment and facilities.

[Kalnas v. Layne of New York Co., 173 N.J. Super. 492, 497 (App. Div. 1980).]

See also Marcus v. Eastern Agricultural Ass'n, Inc., 32 N.J. 460 (1960), rev'g on the dissent in 58 N.J. Super. 584, 596 (App. Div. 1959).

In the present matter, there was substantial evidence of a prior employment relationship between Flores and respondents, lasting for a period of two years. In the past, work that Flores had been asked by his employer to perform included assisting in the installation of gutters and other construction duties, as well as working at the Bredbenner residence. Similarly, the record supports the conclusion that at the time of Flores' accident, he was engaged in a mix of duties, first performing yard work at the Bredbenner home, and then, at Bredbenner's direction, assisting Bredbenner in the installation of a copper gutter at the house of a friend and neighbor. It is uncontroverted that to do that work, Flores was transported to the job site by Bredbenner in his company truck, and throughout the day, Flores utilized materials and equipment supplied by Bredbenner and worked at his direction and under his control. Although Flores was not paid for his work, there is no claim in this case that compensation was neither expected nor promised. Indeed, according to Bredbenner's wife, the offer of compensation was a source of some marital conflict. The record reflects a divergence of testimony with respect to the terms and duration of Flores' employment, with respondents taking the position that the employment was casual in nature and occasioned solely by charitable impulses. However, neither Bredbenner nor his wife rebutted Flores' testimony that Bredbenner had engaged three workers on the day in question - a circumstance suggesting either that more than casual employment was envisioned or that Bredbenner's charitable impulses were of a more substantial nature than even he claimed them to be.

A determination of Flores' status at the time of the accident is complicated by the lack of a contract of employment between him and respondents, by the fact that his prior employment had been seasonal in nature, ending when winter commenced, and by the circumstance of his injury within two days of being hired. Nonetheless, we regard the evidence presented, when viewed with the liberality that precedent requires, to be sufficient to establish an employment relationship between Flores and Paragon and its owner, Bredbenner. We thus affirm the conclusion of the Judge of Compensation that Flores' injury was compensable under the Workers' Compensation Act.

We likewise affirm the judge's denial of Bredbenner's motion to join his homeowners' insurance carrier as a defendant. Coverage under that policy for Flores' injuries could be found to exist only if he were found to be a "domestic employee." The policy at issue defines a domestic employee as follows:

Domestic employee means a person employed by an Insured to perform duties that relate to the use and care of the Insured Premises. This includes a person who performs duties of a similar nature elsewhere for an insured. This does not include a person while performing duties in connection with the business of an Insured.

Because Flores was injured while assisting in the installation of gutters, a component of Paragon's business, and not in the course of domestic duties for Bredbenner, either at the Bredbenner home or elsewhere, the policy provision upon which Bredbenner relies is inapplicable to Flores' claims in this matter. Bredbenner's motion to join the insurer was therefore properly denied.


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