FLORENCIO HERNANDEZ v. EBBY'S LANDSCAPING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FLORENCIO HERNANDEZ,

Petitioner-Respondent,

v.

EBBY'S LANDSCAPING,

Respondent-Appellant.

_________________________________

November 21, 2013

Argued November 7, 2013 Decided

Before Judges Grall and Waugh.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, CP# 2011-22319.

Rustine Tilton argued the cause for appellant (Law Offices of Linda S. Baumann, attorneys; Ms. Tilton, on the brief).

Richard J. Riordan argued the cause for respondent (Green, Jasieniecki & Riordan, LLC, attorneys; John J. Jasieniecki, of counsel and on the brief).

PER CURIAM

Respondent Ebby's Landscaping appeals the March 15, 2013 order of the Division of Workers' Compensation finding that petitioner Florencio Hernandez suffered a compensable injury on June 9, 2011. We affirm.

Hernandez was employed by Ebby's as a laborer. He was on the premises of Ebby's at the end of the workday on June 9, 2011, when he was injured in a fall. He filed a claim for benefits with the Division on August 5. In September, he filed a motion for medical and temporary disability benefits. Ebby's opposed the motion, contending that Hernandez was engaged in an "off-hours sporting activity" at the time of the fall.

The case was tried, as to compensability only, over six days between March 2012 and January 2013. On March 15, 2013, following post-hearing briefing, the judge of compensation placed an oral decision on the record finding that the injury was compensable. The implementing order was entered the same day. This appeal followed.1

The basic issue at the hearing was whether Hernandez was engaged in the work of his employer or on his own time when he fell. Ebby's argues that Hernandez's testimony that he was working at the time of the fall was not credible because there were inconsistencies at the hearing and among his pre-hearing explanations of the accident. The judge of compensation, however, concluded otherwise.

We exercise a "limited" review of a judge of compensation's decision; our role is to determine "'whether the findings made [by the judge of compensation] could reasonably have been reached on sufficient credible evidence present in the record.'" Close v. Kordulak Bros., 44 N.J.589, 599 (1965) (quoting State v. Johnson, 42 N.J.146, 162 (1964)). We give "'due regard to the compensation judge's expertise and ability to evaluate witness credibility.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 277 (2003) (quoting Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 15 (App. Div.), certif. denied, 162 N.J. 485 (1999)). Nevertheless, although considered experts in their field, a judge of compensation's "findings . . . must be supported by articulated reasons grounded in the evidence." Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89-90 (1981).

The judge noted at the beginning of her opinion that Hernandez "was a very unsophisticated and uneducated individual who had difficulty with many of the questions presented to him." She further observed that he was "a poor witness because he was so easily confused." Nevertheless, she credited his testimony that he was injured on the job and did not credit the contrary testimony presented by Ebby's.2

We are satisfied that the record on appeal provides ample support for the judge's credibility determination and her determination that there was a compensable injury. Consequently, we affirm the order on appeal.

Affirmed.

1 The appeal is interlocutory because there has been no determination with respect to the extent of the disability or the amount of compensation to which Hernandez is entitled. Nevertheless, we grant leave to appeal nunc pro tunc and decide the merits.

2 In her oral decision, the judge related that Hernandez had testified that he returned to an Ebby's truck to turn over a garbage can because it was raining and he fell after he got off the truck. In summarizing her findings, however, she stated that he fell while he was getting off the truck. Our review of the decision convinces us that the latter was a misstatement and not, as Ebby's argues, a factual finding unsupported in the record.