JESUS VENTURA v. RELIABLE WOOD PRODUCTS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4554-05T14554-05T1

JESUS VENTURA,

Petitioner-Respondent,

v.

RELIABLE WOOD PRODUCTS,

Respondent-Appellant.

______________________________

 

Argued March 8, 2007 - Decided March 30, 2007

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Division of Workers' Compensation,

Essex County District Office, Claim Petition No.

2006-3336.

Richard J. Williams, Jr. argued the cause for

appellant (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Michael J. Marone and Mr. Williams, of counsel; Mr. Marone, Mr. Williams and Anthony J. Fredella, on the brief).

Scott P. Kessler argued the cause for respondent (Tobin, Koster, Oleckna, Reitman, Greenstein & Konray, attorneys; Mr. Kessler, of counsel and on the brief).

PER CURIAM

In this workers' compensation matter, appellant Reliable Wood Products (Reliable) appeals from a March 24, 2006 order awarding petitioner Jesus Ventura temporary disability benefits of $350 per week, based on a finding that petitioner's wages were to be $500 per week. We affirm.

On November 22, 2005, the very same day he began working at Reliable, petitioner was injured in a work-related accident, which resulted in the surgical amputation of his right foot. Compensability was acknowledged and the only issue at the trial of his claim was the amount of petitioner's wages prior to the accident.

By way of background, at the time of the accident, petitioner was a twenty-nine year old immigrant from Honduras who spoke and understood very little English and who had been living in this country for about twenty months. He supposedly did not have a social security card or number. Experienced in the areas of machine operation and wood cutting, petitioner's previous employment until just prior to the accident had been at Dunkley Mechanical in Clifton, an air condition company, where he had worked for about eight months cutting and manufacturing metal parts on a machine, for which he had been paid eighty dollars per day.

On the morning of the accident, at about 6:30 a.m., petitioner had gone to the Bravo Supermarket parking lot in Orange looking for work. While standing in a group of men, he was approached by three employees of Reliable, Joffre Jaraa, Marcello Vasquez and Segundo Matute, driving in a van, who asked if he wanted to work. Jaraa and Vasquez had been asked the previous day by their supervisor, Patrick D'Adonna, to bring another person with them to Reliable's West Orange facility the next day as they were busy and needed additional help. Reliable operates wood recycling facilities, where tree service companies and landscapers bring tree stumps and other similar organic waste to be grounded up and resold as decorative landscape mulch.

This much appears undisputed. The parties disagree, however, over the agreed upon wage rate. According to petitioner, who was the only witness to testify on his behalf, when first approached, he "talked about the job" with Jaraa, the driver of the van, who told him that he would be cutting wood with a power saw and be paid $100 per day. He reiterated this account on cross-examination:

Q. "All right. Now, he told you $100; correct?"

A. "Yes."

Q. "But you don't know how many times that was for, correct?"

A. "No, he said for the day."

Q. "$100 for the day?"

A. "Yes."

Q. "You asked him if it was going to be permanent, correct?"

A. "Yes."

Q. "What did he say?"

A. "He said yes."

The three men then drove petitioner to the West Orange facility, which was only ten minutes away. According to petitioner, upon arrival, he signed no papers and had no additional discussions with anyone concerning his rate of pay. He was issued rain overalls and then began working outside in the yard at 7:00 a.m. As agreed in the earlier conversation with Jaraa in the parking lot, petitioner would be operating the saw, which was a gas-powered chain saw weighing twenty-five to thirty pounds, with a blade approximately fifty inches in length. The chain saw was used to cut tree trunks, some of which were two to three feet in diameter. Petitioner was working with the other three men, including Jaraa, who were operating tractors with buckets and other large machines to grab and move the tree stumps and pieces into the proper position for petitioner to cut. The four men worked in the yard until noon, took a forty-minute lunch break, and returned to work. At about 2:00 p.m., Jaraa struck petitioner's right leg and foot with the machine he was operating.

Appellant offered a different version. Two of its employees, Jaraa and Vasquez, who were in the vehicle that approached petitioner, denied telling petitioner that he would be paid $100 per day. Both testified that Jaraa had told petitioner before entering the van that he could not tell petitioner how much he would be paid for his work, and that Jaraa's boss would have to tell him when they got to the facility. Both employees claimed that petitioner had accepted the job with no agreement as to how much he was to be paid for his work. Appellant's third witness, Patrick D'Adonna, the Operations Manager at Reliable's West Orange location, claimed that he met with petitioner in his office upon petitioner's arrival and told him that he was to earn $6.15 per hour. No one, however, was able to corroborate this conversation and D'Adonna himself could not recall whether an interpreter was present during the meeting. Additionally, a job application with the name "Jose Ventura" and "$6.15" written on it was entered in evidence even though D'Adonna did not know who had written those numbers on the document. Also entered into evidence was a two-page payroll record indicating various rates of pay for the eighteen employees listed thereon, ranging from $6.15 to $15.50 per hour, although no testimony was offered as to the nature of the work performed by the employees earning these various levels of pay.

After considering the evidence, the Judge of Compensation determined that petitioner's weekly wage was $500 and therefore awarded petitioner temporary disability benefits for 17 and 2/7 weeks at a rate of 70% or $350 per week. Although the judge took judicial notice of a periodical and newspaper article reporting that $100 per day was the going rate for day laborers such as petitioner, he ultimately found that the issue was "primarily one of credibility," and that "the petitioner [was] a more credible witness in this matter," while "the respondent's position is less than credible," based on "conflicting testimony among the witnesses for the respondent."

On appeal, appellant raises the following issues for our consideration:

I. THE JUDGE OF COMPENSATON'S DECISION SHOULD BE REVERSED AS IT IS UNSUPPORTED BY AND INCONSISTENT WITH THE COMPETENT AND RELEVANT EVIDENCE OFFERED AT TRIAL.

A. The Appellate Standard of Review

For Administrative Agency Decisions.

B. The Judge of Compensation Failed to Base His Decision on the Evidence Before Him at Trial.

II. THE JUDGE OF COMPENSATION ERRED IN TAKING JUDICIAL NOTICE THAT $100 PER DAY IS THE "GOING RATE" FOR WORKERS PERFORMING THE SAME TYPE OF JOB DUTIES AS PETITIONER WAS EMPLOYED BY RELIABLE TO PERFORM.

A. The Judge of Compensation Improperly Took Judicial Notice of a Fact That Is Not Within Common Knowledge and Was Disputed Between the Parties.

B. The Judge of Compensation Improperly Took Judicial Notice of A Fact That Was Highly Contradicted By the Evidence Presented at Trial.

III. THE JUDGE OF COMPENSATION ERRED IN RECONSTRUCTING PETITIONER'S WAGE FOR TEMPORARY DISABILITY BENEFITS.

We have reviewed the entire record in this matter and conclude there was sufficient credible evidence to sustain the compensation judge's factual and legal conclusions, apart from any reliance on matters judicially noticed. We further conclude that appellant's argument that the compensation judge improperly reconstructed petitioner's wage is without merit. R. 2:11-3(e)(1)(E). Accordingly, we affirm. We add, however, only the following comments.

The standard governing the scope of appellate review of workers' compensation cases is well established, and was set forth by our Supreme Court in Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The test is "'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." Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also Lindquist v. City of Jersey City Fire Dep't., 175 N.J. 244, 258 (2003). Compensation Judges are regarded as experts, Kovach v. Gen. Motors Corp., 151 N.J. Super. 546, 549 (App. Div. 1978), and their findings are entitled to deference, Goldklang v. Metro. Life Ins. Co., 130 N.J. Super. 307, 309 (App. Div.), aff'd o.b., 66 N.J. 7 (1974). Thus, our review is a limited one. In re Taylor, 158 N.J. 644, 656 (1999).

Measured by this standard, the judge's findings were well supported in the evidence. Petitioner testified that during the conversation at the van, he had been offered and accepted $100 per day for operating a chain saw at appellant's facility. The judge found petitioner entirely credible especially given the implausibility both of petitioner accepting a job not knowing its rate of pay and being paid minimum wage for the type of work he would be performing.

In contrast, the judge rejected the account of the two co-workers, who testified "in tandem," as well as that of D'Adonna, who, the judge found, was "very ill at ease in testifying and

. . . unsure of . . . and sketchy about . . . his facts." Indeed, D'Adonna, who speaks very little Spanish, testified he conversed with petitioner, who speaks very little English, about the details of the employment arrangement without benefit of an interpreter present, and allegedly had him complete an employment application at that meeting. Moreover, both the employment application and a social security card allegedly provided by petitioner at the time inexplicably had written in block letters on the signature lines "Jose Ventura," although petitioner's name was properly inscribed elsewhere on the documents. Commenting on D'Adonna's testimony on this point, the judge noted:

He obtained a simple application, which was marked in evidence, but didn't remember who filled it out or how it got signed. He claimed that the petitioner gave him his Social Security card, which he photocopied and returned, although it should be noted that the application and the Social Security card say Jose and not Jesus, which is petitioner's name.

The rejection of appellant's version of the disputed issue on the basis of credibility and demeanor was well within the discretion afforded the court in such matters. See Lindquist, supra, 175 N.J. at 258; Szumski v. Dale Boat Yards, Inc., 48 N.J. 401, 410, cert. denied, 387 U.S. 944, 87 S. Ct. 2077, 18 L. Ed. 2d 1331 (1967); State v. Johnson, supra, 42 N.J. at 162. We also recognize, however, that the judge took judicial notice of the "going rate" for workers such as petitioner, a fact which, in our view, is not already generally known or capable of being known by resort to sources whose accuracy cannot reasonably be questioned, N.J.R.E. 201(b); Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 201 (2006), and therefore not a proper subject for judicial consideration. Nevertheless, the judge's finding in this regard was incidental to its essential credibility determination, which was based on his assessment of witness demeanor, conflicts in testimony, and the intangible "feel" of the case. This credibility determination stands on its own, separate and apart from any support it may have had in the two outside sources cited by the court. When the matter judicially noticed is extracted from this case, we are satisfied that the remaining evidence more than sufficiently supports the judge's determination.

Affirmed.

 

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A-4554-05T1

March 30, 2007