DANIEL CORDEIRO v. DANNY'S CONSTRUCTION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2714-11T3

DANIEL CORDEIRO,

Petitioner-Respondent,

v.

DANNY'S CONSTRUCTION,

Respondent.

________________________________________________________________

December 13, 2012

Argued September 27, 2012 - Decided

Before Judges Koblitz and Accurso.

On appeal from New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2010-19161.

Stephen V. Gimigliano argued the cause for appellant Sentinel Insurance Company, Ltd. (Graham Curtin, P.A., attorneys; Mr. Gimigliano and John Maloney, on the briefs).

Dennis M. Baptista argued the cause for respondent Daniel Cordeiro (Livingston, Siegel, DiMarzio & Baptista, L.L.P., and The Blanco Law Firm, L.L.C., attorneys; Pablo N. Blanco, of counsel and on the brief; Mr. Baptista, on the brief).

PER CURIAM

Sentinel Insurance Company, Ltd.1 (Sentinel) appeals from the March 9, 2011 order of the Division of Workers' Compensation. The parties agreed that because petitioner Daniel Cordeiro is the president and owner of Danny's Construction Co. (Danny's), Sentinel is the only respondent in interest in this workers' compensation case. The Judge of Compensation determined that Cordeiro's severe injuries2 were compensable under the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -142 (the Act). Sentinel argues that because Cordeiro was injured installing a skylight in his own home, the accident did not arise out of and in the course of his employment. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The facts are not in dispute. Danny's is a New Jersey corporation involved primarily in masonry and concrete work. It was formed in 1996 and at the time of the accident employed eight or nine individuals. Cordeiro received a weekly salary working as the on-site supervisor. Cordeiro purchased an investment property in Asbury and listed Danny's as the repair and renovation general contractor on the construction permits. In its capacity as general contractor, Danny's hired plumbing and electrical subcontractors and agreed to pay the going rate for their work.

On the morning of June 17, 2010, Cordeiro and two of Danny's employees reported to a jobsite, where they unexpectedly discovered that the concrete work they were there to perform could not be done due to conditions at the worksite. Cordeiro decided to "save the day" by working on the Asbury house renovation. One of the workers with Cordeiro had previously worked on the Asbury renovation with other Danny's employees, and had been paid by the company for that work.

On the day of the accident, Cordeiro drove two of his workers, in the company truck, to the Asbury home where Cordeiro and one of his co-workers ascended to the roof to install a skylight while the other worker cleaned up debris. While cutting the roof, Cordeiro accidentally fell through the roof onto the concrete floor below.

At trial, the insurance underwriter3 testified that Danny's workers' compensation insurance policy only covered the installation of concrete slabs for residential homes, although she was unable to point to any wording in the policy delineating such a policy limitation. The unsigned electronic application completed by the insurance agent indicated that Danny's used subcontractors approximately three percent of the time. The application also indicated that the company did not do work higher than three feet above ground level.

Sentinel stipulated that the workers' compensation insurance policy covered Cordeiro as an employee of Danny's,4 but argued that the accident did not arise out of or in the course of Cordeiro's employment. Sentinel maintains that the insurance underwriter's testimony regarding Danny's insurance application, coupled with the testimony of Cordeiro and his employees, demonstrates that Danny's operated as a concrete construction subcontractor whose employees did not work more than three feet above ground level. Sentinel argues that Cordeiro's injuries "resulted from his personal activities [in] his own home," rather than during the usual work of the company.

In Jumpp v City of Ventnor, 177 N.J. 470, 483 (2003), the Supreme Court noted that "[e]mployees who are where they are supposed to be, [and] doing what they are supposed to be doing, are acting within the course of employment . . . ." (citations omitted). Thus an accident, occurring while an employee is performing a task assigned by the employer, is compensable. Sentinel indicates that because Cordeiro, as the employer, directed the work at his own home, he can not rely on the holding in Jumpp, to support his argument that the activity ordered by him is compensable even if it is outside normal work duties. We agree that Cordeiro, unlike one of Danny's other employees, can not rely on his own orders as a supervisor to demonstrate that the work he performed was within his work duties. We also agree that some of the renovation work done on Cordeiro's property was beyond the usual scope of work performed by Danny's.5

Cordeiro and his employees, however, worked at the Asbury home on a normal workday, during normal work hours, performing construction work for which Danny's had obtained construction permits. Danny's acted as a legitimate general contractor, hiring subcontractors in arms-length transactions. The employees were paid by Danny's for their work.

Our scope of review in a workers' compensation case is limited to a determination of

whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor.
 
[Sager v. O.A. Peterson Constr., Co., 182 N.J.156, 164 (2004) (quoting Close v. Kordulak Bros., 44 N.J.589, 599 (1965)).]

Thus, "[d]eference must be accorded 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 Dept., 175 N.J. 244, 262 (2003) (internal quotation marks and citations omitted). If a Judge of Compensation mistakenly applies the law to the facts, however, we must reverse. See Sentinel Ins. Co. v. Earthworks Landscape Constr., L.L.C., 421 N.J. Super.480, 485-86 (App. Div. 2011) (citations omitted).

To be entitled to compensation under the Act, a claimant bears the burden of proving by a preponderance of the evidence, see Akef v. BASF Corp., 305 N.J. Super. 333, 340 (App. Div. 1997), that his or her injuries, "ar[ose] out of and in the course of employment [and were] due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." N.J.S.A. 34:15-31(a).

"Whether an accident arose out of and in the course of employment is a two-part question." Stroka v. United Airlines, 364 N.J. Super. 333, 339 (App. Div. 2003), certif. denied, 179 N.J. 313 (2004). First, "a [claimant] must demonstrate a causal connection between the employment and the accident." Ibid. (citation omitted). Second, "a [claimant] must show a time and place [nexus] between [his or her] employment and the accident." Ibid.

In adjudicating such issues, courts must bear in mind that "[t]he language of the [Act] must be liberally construed in favor of employees." Cannuscio v. Claridge Hotel, 319 N.J. Super. 342, 349 (App. Div. 1999) (citations omitted). We note that "the [Act] is remedial social legislation and should be given a liberal construction in order 'to implement the legislative policy of affording coverage to as many workers as possible.'" Auletta v. Bergen Ctr. for Child Dev., 338 N.J. Super.464, 470 (App. Div.) (quoting Brower v. ICT Grp.,164 N.J.367, 373 (2000)), certif. denied, 169 N.J.611 (2001). The evidence supports the findings of the Judge of Compensation, whose expertise and review of the witnesses' testimony led her to conclude that Cordeiro "was acting within the course and scope of his employment."

A

1 Improperly referred to at trial as Hartford Insurance Company.

2 The parties do not dispute that Cordeiro suffered a "100% permanent total disability for the residuals of multiple traumatic injuries including post traumatic paraplegia, spinal cord injury, fractured left tib[i]a with deep laceration of the leg, fractured left clavicle, multiple bilateral rib fractures, [and] respiratory failure secondary to spinal cord injury . . . ." His medical bills at the time of the October 27, 2011 order for total disability were approximately $961,970.

3 The underwriter identified herself as an employee of The Hartford.

4 See N.J.S.A. 34:15-36 (allowing self-employed persons to obtain coverage); see also Henk v. E. Air Taxi, Inc., 91 N.J. Super. 317, 319 (App. Div.), certif. denied, 48 N.J. 110 (1966).

5 Danny's employees did pour the concrete floor in the room where he was injured.