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Luz Lukasik v. Marguerite Holloway

August 22, 2012

LUZ LUKASIK, PETITIONER-RESPONDENT,
v.
MARGUERITE HOLLOWAY, ROBERT M. AND MARILYN NINI, RESPONDENTS-APPELLANTS.



On appeal from the New Jersey Division of Workers' Compensation, No. 2007-9010.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 13, 2012

Before Judges Ashrafi and Hayden.

In this workers' compensation case, the single issue we decide is whether petitioner, who was hired to clean respondents' house, was their employee or an independent contractor. Petitioner fell and injured her hand in the first hour of the first day of performing cleaning services for respondents, and she never personally cleaned their house again. Respondents appeal from the decision of the workers' compensation judge that petitioner was their employee and therefore entitled to workers' compensation benefits. Concluding that the judge misapplied the law, we reverse.

The relevant facts are not disputed. The only witnesses who testified at the trial were petitioner and her daughter. In December 2006, respondents contacted petitioner after receiving from an acquaintance petitioner's business card advertising cleaning services. At that time, petitioner was cleaning five or six other houses and one office building on a regular basis.

Petitioner and her daughter went to respondents' home to give "an estimate" for their cleaning services based on the size of the house and the services required. Because petitioner did not speak English, her daughter translated for her. Petitioner examined the house, and she told respondents what services she would provide and what services she would not provide. Specifically, she said she would not do laundry. There was a brief discussion of the possibility of doing laundry in the future but on a different day from the cleaning day. The parties agreed that petitioner would clean the house one day per week for $100 beginning at a date to be set by respondents. The specific day of the week was not discussed.

Several weeks later, one of the respondents contacted petitioner and arranged for her to do the first cleaning on January 16, 2007. Petitioner came to respondents' home with a friend and began cleaning, using supplies provided by respondents. She was not given any specific instructions about where to start or how to do the cleaning. Within the first hour, petitioner fell off a stool while dusting, and she injured her hand. One of the respondents called an ambulance to take her to a hospital for treatment.

In the days after the accident, petitioner resumed her cleaning services at other properties. Later, she made arrangements through her daughter to return to clean respondents' home. She came on one other occasion in the ensuing weeks after the accident. Before the second cleaning, her daughter told respondents that petitioner needed to purchase supplies, and respondents agreed to reimburse her for the cost. Petitioner came to respondents' home with her daughter and a friend. Because of her injured hand, petitioner could not personally clean the house. She supervised her daughter and the friend as they did the cleaning work. Subsequently, respondents failed to pay her for the cleaning and the supplies.

Petitioner filed a claim in the Division of Workers' Compensation on March 27, 2007, alleging work-related injury of her hand, arm, and nervous system as a result of the fall on January 16, 2007. Respondents filed an answer denying liability, in particular, denying that petitioner was their employee. The workers' compensation judge bifurcated the issues of liability and compensability. The judge heard testimony from petitioner and her daughter on July 30, 2009, and placed an oral decision on the record on February 4, 2010,*fn1 concluding that petitioner was an employee of respondents under the so-called control test. The judge stated that respondents set the day for her to clean their house, they expected her to provide the services on a regular basis, and they had the ability to direct her cleaning work, although they did not actually control how she went about cleaning the house.

Through a later hearing conducted in June 2011, the judge found that fractures of petitioner's hand and wrist resulted in forty-five percent disability and entitled her to 110.25 weeks of compensation totaling $22,170.75. The judge also awarded $2,661 as respondents' share of petitioner's attorney's fees and other fees payable to the examining doctors and the court interpreter.

Respondents appealed. Following conference under our Civil Appeals Settlement Program, the matter was remanded to the compensation judge for additional findings. The judge issued a written decision on November 17, 2011, confirming his conclusion that petitioner was an employee of respondents but reducing the disability award to $7,717.50 and respondents' share of petitioner's attorney's fees to $926. The explanation for the reduction was that, since petitioner continued to clean for other clients after her injury, the award should be based on loss of wages of $100 per week rather than a full week's wages of $500.

On appeal before us, respondents argue that the compensation judge erred in concluding that petitioner was their employee within the meaning of N.J.S.A. 34:15-36. We agree.

In reviewing the application of the law to the undisputed facts in this case, we are cognizant that the compensation judge has expertise in this specialized field and is entitled to deference in making findings of fact. See, e.g., Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996). "Deference must be accorded to the factual findings and legal determinations made by the Judge of Compensation 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. ...


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