On appeal from the New Jersey Department of Labor, Division of Workers' Compensation. Wendy S. Bornstein argued the cause for appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2010 -- Decided Before Judges Rodriguez and Grall.
Petitioner Dennis Burgos appeals from the dismissal of his workers' compensation claim against respondent RJS Associates Landscaping, Inc. (RJS). We affirm.
On January 26, 2008, Burgos was injured when he fell from a tree that he was trimming at the home of Robert Vaughn and Elizabeth Vaughn. Prior to this date, Burgos had contacted Robert Sonner, the owner of RJS, on numerous occasions, seeking tree work because Burgos' employer, Nature's Hands tree service, was out of work. Burgos had met Sonner while Burgos was working for Nature's Hands. Sonner was unable to help Burgos because RJS had one full-time employee and hired additional employees only for snow removal. RJS preferred to subcontract tree services when necessary on RJS projects. In fact, Burgos had worked for Nature's Hands on an RJS project. The facts are sharply disputed from this point on.
According to Burgos, on January 26, 2008, he met Sonner at the latter's house because Sonner had hired him to remove or trim approximately fourteen trees at the Vaughn residence. Burgos brought his "professional equipment," which included "[a] saddle, a body lanyard, climbing line, lowering line, snaps, [and] a handsaw." Sonner and Burgos did not speak about compensation, or from whom Burgos was to receive payment.
Burgos testified that all that Sonner said was that "[h]e was going to take care of me." Burgos believed that RJS employees would also be working at the Vaughn residence as part of a larger "overall job." Therefore, he assumed that RJS would be paying him.
On the scheduled day, Sonner walked Burgos over to the Vaughns' residence. After introducing Russell Vaughn, Sonner explained the work that Burgos was to perform on the trees that Sonner had previously marked. Before leaving, Sonner supplied Burgos with a chainsaw and said that RJS employees would be there to assist Burgos. Burgos used his personal climbing equipment. Shortly after beginning work, Burgos "slipped out of a tree," and sustained injuries.
According to Sonner, the Vaughns were his friends. In early 2008, Robert Vaughn approached Sonner about tree services. Because RJS's expertise was in "gardening, planting, grading, soil manipulation, [and] grade manipulation," Sonner contacted Burgos to offer him the work. Sonner believed that he was not paying anyone, nor receiving any compensation. Rather, Sonner believed that he was doing Vaughn and Burgos a favor.
Burgos filed a workers' compensation petition. RJS answered, denying that Burgos had been its employee. Subsequently, RJS moved to implead the Vaughns and dismiss the petition. The Vaughns, in turn, moved to dismiss on the same grounds. Burgos did not oppose the Vaughns' motion.
The judge of compensation found that Burgos was not an employee of the Vaughns, and was a casual employee of RJS or an independent contractor. Drawing a parallel to Swillings v. Mahendroo, 262 N.J. Super. 170 (App. Div. 1993), the judge alternatively found that Burgos was an independent contractor due to his "special expertise [and] certain skills," and because he "was brought to work on a specific job and not to become involved in a continuing relationship [with RJS or the Vaughns]." Therefore, the judge ...