On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 1999-1964.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Rodríguez and Newman.
On July 31, 1998, petitioner George Gialalidis fell through a skylight while constructing a garage on respondent-appellant Denny Wiggers Landscaping Company's (Wiggers) property. He sustained serious and multiple injuries. The extent of the injuries and the amount of the award are not in question. The issue is whether petitioner, a carpenter by trade, was an employee of Wiggers or an independent contractor at the time of the accident. Workers' Compensation Judge Fader concluded that petitioner was an employee of Wiggers under both the right to control and the relative nature of the work tests. Wiggers appeals. We affirm.
The relevant facts are as follows. Petitioner had been hired by Wiggers to perform various jobs beginning in December 1996 through the date of the accident. Petitioner performed a variety of work from building decorative holders for plants, to building refrigerators for flowers, hanging wallpaper and fixing leaking roofs. He did work as well for Donald Wiggers, the father of Denny Wiggers.
Denny Wiggers paid him twenty dollars an hour for his services, although this was not the amount of payment ordinarily charged by petitioner. Petitioner had his own business known as "George's Home Repairs." When doing a job for his business, he would provide an estimate to the customer for the proposed project. Petitioner has his own truck, but was instructed by Denny Wiggers to remove the sign identifying his business located on the truck when he worked for Wiggers.
In July 1998, Denny Wiggers contacted petitioner to build a garage at his Closter storage facility. There were no formal drawings or blueprints for the garage. Petitioner worked Monday through Saturday for the three weeks leading up to the accident and was paid twenty dollars an hour as previously agreed. The checks were made out to him personally, not to the name of his incorporated business.
Petitioner would show up every day and either Denny Wiggers or his father Donald Wiggers would meet with him and tell him what to do. Petitioner was told how many windows the garage would have, their placement and what kind of wood to use on the building and the color of the roof shingles. Petitioner would provide a list of materials based on what either Wiggers described to be done. Denny Wiggers would call the lumber yard located across from the property in Closter for delivery or have another member of his staff deliver the materials. If petitioner needed help, Denny Wiggers would arrange for one of his other employees to assist petitioner.
Donald Wiggers was on the site daily. In his son's words, he was a "real quality control type of person." Donald Wiggers testified that the building was of existing steel frame construction and that petitioner was hired to put the wood on the roof and on the sides, ". . . just basically fill in the dots." The idea for the skylight was that of Donald Wiggers.
He also wanted a certain overhang on the building so that any gutter against the building would overhang sufficiently to protect the building sides from any dripping.
In deciding that petitioner was an employee of Wiggers when he fell on the job site, Judge Fader made the following findings of fact and conclusions of law:
As summarized by the Appellate Division so succinctly in Tofani v. LoBiondo Brothers Motor Express, 83 N.J. Super. 480, aff'd 43 N.J. 494 (1964) "under the control test, the right to control is usually inferred from direct evidence of: Right of control and exercise of control; right of termination; method of payment; and who furnishes the equipment. Of the four factors evidencing right of control, any single one is virtually proof of the employment relation, while contrary evidence as to any one factor is, at best, only mildly persuasive evidence of constractorship, and sometimes is of no force at all.
Independent contractorship then is established usually only by a convincing accumulation of these and other tests, while employment can, if necessary, often be solidly proved on the strength of one of the four items; direct evidence of control; method of ...