May 9, 2012
MARCO ANTONIO CRUZ, PETITIONER-APPELLANT,
IVANIA PEREZ ALONZO, RESPONDENT-RESPONDENT.
On appeal from the Division of Workers' Compensation, Department of Labor, Docket No. 2010-14342.
OT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 20, 2012 -
Before Judges Espinosa and Guadagno.
Marco Antonio Cruz was injured while remodeling Ivania Perez Alonzo's*fn1 residential basement. Cruz filed a claim for medical and temporary benefits with the Workers' Compensation Court, claiming that he was an "occasional employee." Alonzo filed an answer and moved to dismiss the claim. A hearing on the motion was held on July 5, 2011, and on August 16, 2011, the compensation judge dismissed Cruz's complaint, finding that Cruz was not an "employee," as defined under the Workers' Compensation Act (WCA or the Act), N.J.S.A. 34:15-1 to -128, and was ineligible for benefits. Cruz appeals from this dismissal and raises the following issues:
THE STANDARD OF REVIEW ON APPEAL REQUIRES A JUDICIAL REVERSAL WHEN THERE IS A SHOWING OF INJUSTICE
CRUZ IS ENTITLED TO WORKERS' COMPENSATION BENEFITS BECAUSE HE WAS EMPLOYED BY ALONZO PERIODICALLY AND ON A RECURRING BASIS We reject these arguments and affirm.
At the hearing below, Cruz provided the only testimony. He was introduced to Alonzo through her uncle and, beginning in 2009, he completed minor work around her home, including unclogging a toilet, repairing a light fixture, and replacing a switch.
Before beginning work on the project precipitating this litigation, Alonzo's uncle picked up Cruz and drove him to Alonzo's home, as Cruz did not own a car or have a driver's license. Alonzo explained the project to Cruz and agreed to pay him one hundred dollars for each day he worked. Cruz was to work only on weekends as he had a full-time job during the week at a supermarket where he earned five hundred dollars per week. The parties also agreed that Alonzo's mother would drive Cruz to and from work but did not set a schedule for drop-off and pickup times. Rather, Alonzo's mother would call Cruz to let him know when she was on her way to get him and Alonzo would determine how long Cruz would work.
When Cruz began work, he brought only a saw with him. Alonzo provided him with a drill, as well as sheetrock and plaster. When additional materials were needed, Cruz accompanied Alonzo's husband to Home Depot to purchase doors, compound, moldings, tape and screws.
While Cruz worked in the basement, Alonzo and her mother "constantly came down to see" him and would point out any mistakes, which Cruz would remedy. Alonzo's mother "would supervise everything that [Cruz] did to make sure that it was done right." Alonzo and her mother also asked Cruz to complete one task that apparently was not part of the remodeling project.*fn2
On April 23, 2010, during his third weekend of work, Cruz suffered serious injury to several fingers on his left hand while using a power saw*fn3 and was unable to complete the project.
Our role in reviewing the determination of a state agency is a limited one. Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004). We may not substitute our own factfinding for that of the agency. Ibid. We are required to defer to the factual findings and legal determinations made by the compensation judge unless they are "manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)). Accordingly, if in reviewing an agency decision, we find sufficient credible evidence in the record to support the agency's conclusions, we must uphold those findings, even if we believe that we would have reached a different result. In re Taylor, 158 N.J. 644, 657 (1999) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28-29 (1981)).
N.J.S.A. 34:15-36 defines an employee as being "synonymous with servant, and includes all natural persons . . . who perform service for an employer for financial consideration." The term employee is to be defined liberally in order to bring as many cases as possible within the scope of the WCA. Sloan v. Luyando, 305 N.J. Super. 140, 147 (App. Div. 1997).
Here, the compensation judge rejected Cruz's argument that he should be considered an employee because he had worked at Alonzo's home on prior occasions and the work he was hired to do required several weekends to complete. Relying on Berkeyheiser v. Woolf, 71 N.J. Super. 171 (App. Div. 1961), and Martin v. Pollard, 271 N.J. Super. 551 (App. Div.), certif. denied, 137 N.J. 307 (1994), the judge found:
Mr. Cruz had a regular and permanent full-time job elsewhere at a substantial salary. He had no expectation of regular and steady employment by Mrs. Perez Alonzo. He testified that the odd jobs for the Respondent occurred at irregular and isolated occasions and only when the need arose. Petitioner did not perform the repairs on a regular schedule, but he himself choose [sic] the weekends he worked for Mrs. Perez Alonzo when he was not working his full-time job at the supermarket and was paid at a daily rate for work.
On appeal, Cruz argues that the judge "misinterpreted the law as it applies to the facts herein." We disagree and find the court's holding is consistent with the principles cited above and, more specifically, with Berkeyheiser and Martin.
In Berkeyheiser, the respondent was the owner of several residential buildings which she rented to others. Over a period of time, Berkeyheiser performed odd jobs for her in several of the buildings. The respondent would provide the necessary materials used in the work, or Berkeyheiser would purchase them at a store and charge them to the respondent's account. Berkeyheiser used his own tools to perform the jobs and kept track of the hours he worked. The respondent paid him at an hourly rate at the end of the job.
At the time of the accident, Berkeyheiser was employed full-time as a pipe fitter. He did not hold himself out to the public as being available for performing any particular type of repair work. He was engaged by the respondent to install an electric outlet for a refrigerator in the respondent's apartment and was injured when an electric drill he was operating struck a live electric wire.
Berkeyheiser lost his claim for compensation in the Workers' Compensation Court. We affirmed based upon the court's finding that Berkeyheiser had a regular and permanent full-time job elsewhere at a substantial salary; he had no expectation of regular and steady employment by the respondent; the odd jobs he did for respondent occurred at irregular and isolated occasions and only when the need arose; and he did not perform the repairs on a regular schedule, but he himself chose the times when he would appear to make the repairs. Berkeyheiser, supra, 71 N.J. Super. at 177. Those findings resulted in a determination that Berkeyheiser was either a casual employee or an independent contractor; the precise label did not matter, because under either scenario, Berkeyheiser was not entitled to compensation benefits. Ibid.
In Martin, the plaintiff resided in one of Pollard's rental houses. Pollard offered Martin $10 per hour to paint the exterior of one of the homes and apply water seal to another. The arrangement was that Martin would keep track of his hours, and Pollard would pay him when the job was done. Martin had a full-time job working for a cleaning service and testified that he did work for Pollard in his "spare time" after his "regular work." While applying water seal, Martin fell from the roof and broke his leg.
The compensation judge found that Martin was not an independent contractor because the Pollards were in the business of renting properties and Martin was rendering services "in connection with the employer's business." We reversed, finding the relationship failed the control test because Martin "chose the time when he would perform the work and the manner in which it would be accomplished." Martin, supra, 271 N.J. Super. at 557.
Here, the judge relied on Berkeyheiser in not specifically classifying Cruz as either a casual employee or an independent contractor, finding the "precise label did not matter." She concluded that Cruz was not an employee and not entitled to relief under the WCA.
Under Berkeyheiser "the term 'casual' at least connotes a relationship relatively brief and passing, coming without regularity." Berkeyheiser supra, at 175. When the petitioner's work is not part of the respondent's ordinary business, it is logically more likely to be casual and the statute imposes a correspondingly higher burden on the petitioner, requiring the work to have been "regular, periodic or recurring." N.J.S.A. 34:15-36. Alonzo was not engaged in the business of construction or remodeling and Cruz does not claim that he had any agreement to continue to work for her after the completion of the remodeling project. It is clear that Cruz was a casual employee and did not meet the burden of proving that his work was "regular, periodic or recurring." N.J.S.A. 34:15-36.
The remaining argument advanced by Cruz, that reversal is required because there has been "an affirmative showing of injustice," is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).