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Marco Antonio Cruz v. Ivania Perez Alonzo

May 9, 2012

MARCO ANTONIO CRUZ, PETITIONER-APPELLANT,
v.
IVANIA PEREZ ALONZO, RESPONDENT-RESPONDENT.



On appeal from the Division of Workers' Compensation, Department of Labor, Docket No. 2010-14342.

Per curiam.

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:

POINT ONE

THE STANDARD OF REVIEW ON APPEAL REQUIRES A JUDICIAL REVERSAL WHEN THERE IS A SHOWING OF INJUSTICE

POINT TWO

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.

I.

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 ...


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