RANDOLPH PERRY v. NEW JERSEY STATE RACING INDUSTRY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4766-05T24766-05T2

RANDOLPH PERRY,

Petitioner-Respondent,

v.

NEW JERSEY STATE RACING

INDUSTRY,

Respondent-Appellant,

and

RANDOLPH PERRY,

Petitioner-Respondent,

v.

ROBERT HOROWITZ STABLE,

Respondent-Respondent.

_________________________________________

 

Argued March 14, 2007 - Decided September 5, 2007

Before Judges Stern, A. A. Rodr guez and Sabatino.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Bergen County, 05-2948.

Michael J. Marone argued the cause for appellant New Jersey State Racing Industry (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Marone and Richard J. Williams, Jr., of counsel; Mr. Marone and Joseph G. Fuoco, on the brief).

Michael I. Deutsch argued the cause for respondent Randolph Perry.

Eric E. Fingerman argued the cause for respondent Robert Horowitz Stable (Freeman, Barton, Huber & Sacks, attorneys; Mr. Fingerman, on the brief).

PER CURIAM

This appeal requires us to construe the meaning of the term "horse racing industry employee" as used in N.J.S.A. 34:15-131, a section of the New Jersey Horse Racing Injury Compensation Board Act (the Act), codified at N.J.S.A. 34:15-129 to -142.

The New Jersey State Racing Injury Compensation Board (the Board), appeals from the judgment of the Division of Workers' Compensation (the Division), finding that Randolph Perry is a "horse racing industry employee," and thus, entitled to receive workers' compensation benefits from the Board for injuries he sustained while working at a stable at the Meadowlands Racetrack. Accordingly, the Division dismissed another claim petition filed by Perry against Robert Horowitz Stable (Horowitz) for the same accident because coverage under the Act is primary. N.J.S.A. 34:15-135(d). We reverse.

These are the salient facts. Perry has been a trainer of horses for forty-seven years. He is licensed by the New Jersey Board Racing Association and Trotting Association as a trainer and as an owner. He trained horses for various owners, charging them approximately $50 a day. He gets paid on a monthly basis. According to Perry's racing stall application for the 2003-2004 racing season; he rented five stalls at the Meadowlands Racetrack. He trained several horses, including two of which he was a partial owner (twenty-five percent). His wife Donna Perry, Ken Iulo and K.T. Sacado, owned the three other horses that he trained. In addition, Perry trained a horse belonging to Horowitz that was in Perry's rented stall at the time of the accident. Perry testified that he spent approximately seventy-five percent of his time caring for horses he partially owned. The other twenty-five percent was spent training horses owned by others.

On January 19, 2004, the weather was cold, wet and icy. As he was opening the barn door where the horses he trained were stalled at the Meadowlands Racetrack, he stepped on "a patch of ice under his feet." According to Perry, he "just flipped over, because the door was like frozen closed." Perry sustained a serious fracture. He underwent an open reduction internal fixation procedure. As a result of the accident, Perry was unable to walk without crutches and could not work. He underwent additional surgeries to the opposite knee.

Perry filed claim petition 05-2948 with the Division against Horowitz. Horowitz answered, admitting Perry was in his employ on the day of the accident, but denied that the accident arose out of and during the course of this employment. Six months later, Perry filed claim petition 05-21819 against the Board, alleging that he sustained injuries on January 19, 2004, during the course of employment as a "horse racing industry employee." The Board answered, and objected to the claim arguing that Perry was not a "horse racing industry employee."

Following a hearing, the Judge of Compensation found that Perry was a "horse racing industry employee." Thus, the Board was held responsible for all workers' compensation benefits arising out of the January 19, 2004 accident. The judge dismissed the claim against Horowitz. Perry did not cross-appeal that dismissal. The Board moved for a stay of judgment. The judge denied the motion. On appeal, the Board contends that reflecting on the limited purpose and legislative history of the Act, Perry did not qualify as a "horse racing industry employee" because he was a self-employed independent contractor. We agree.

We begin our analysis by focusing on the legislative findings and declarations:

The Legislature finds and declares that, whereas current law already requires virtually all employers to provide for the payment of workers' compensation benefits to injured employees, because of the unique nature of the horse racing industry, difficulties have arisen in ensuring that coverage is provided to employees. For example, out-of-State horse owners are sometimes unaware of their obligation to provide such coverage, or because a jockey may ride the horses of more than one owner, there may be confusion as to who the responsible employer is. As a result, serious injuries have been sustained for which there is no coverage.

It is, therefore, in the public interest to ensure that workers' compensation coverage is available to persons employed in the thoroughbred and standardbred horse racing industries in New Jersey by collectively securing workers' compensation insurance coverage for such persons, the costs of which shall be funded by the horse racing industry, and the assessments for funding that coverage shall be calculated separately for the thoroughbred and standardbred industries, based on their respective experience.

[N.J.S.A. 34:15-130.]

The section of the Act that is the core of this appeal, read as follows at the time of Perry's injury:

As used in this act: . . . "Horse racing industry employee" means a jockey apprentice, or driver engaged in performing services for an owner in connection with the racing of a horse in New Jersey. In addition, a trainer who otherwise would be considered an employee of the owner pursuant to [the Workers' Compensation Act], as well as any person assisting such trainer who is licensed or required to be licensed by the commission, is a horse racing industry employee for purposes of this act.

[N.J.S.A. 34:15-131 (emphasis added), amended by L. 2004, c. 119, eff. Aug. 8, 2004.]

Thus, the definition of a "horse racing industry employee" excludes trainers generally, but includes some trainers, i.e., those who would be considered an employee of the owner as defined by the Workers' Compensation Act (WCA).

In Fitzgerald v. Tom Coddington Stables, 186 N.J. 21 (2006), our Supreme Court analyzed the legislature history and purpose of section 131 of the Act and held that they support a narrow interpretation of its coverage. The Court noted that "under N.J.S.A. 34:15-131, only three categories of persons qualify as a 'horse racing industry employee.'" Id. at 39. Those categories are: (1) jockey, jockey apprentices or drivers; (2) "a trainer who otherwise would be considered an employee of the owner;" and (3) persons who are licensed or required to be licensed by the New Jersey Racing Commission who assists someone in the first two categories. Id. at 34. The Fitzgerald plaintiff did not fit any of the three categories because she worked for a trainer, who was unquestionably not considered the employee of an owner.

Here, Perry is wearing two hats. On the one hand, he is an owner. As such, he would be required to obtain coverage for any of his employees, if he had any. N.J.S.A. 34:15-134.1. On the other hand, Perry does work with horses owned by various other people. If he meets the definition of employee pursuant to the WCA, he would be entitled to workers' compensation coverage by the Board.

The WCA defines an "employee" as follows:

[S]ynonymous with servant, and includes all natural persons, including officers of corporations, who perform service for an employer for financial consideration....

[N.J.S.A. 34:15-36.]

Applying that definition to Perry's status as a trainer, we must conclude that he is not an employee of the owners of the horses that he trains. First, he is not in a "servant" role with respect to those owners. Second, although Perry is compensated for his work, he does not receive wages. There is no evidence in the record that he receives a W-2 or 1099 form from any of the owners. There are no deductions or withholdings from his compensation. These would be indicia of employment. Third, Perry submits a monthly bill to those owners for whom he has performed services. This is indicative of an independent contractor. Lastly, Perry's work arrangements do not meet the "right to control" or "relative nature of the work" tests. Lesniewski v. W.B. Furze Co., 308 N.J. Super. 270, 280 (App. Div. 1998); Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 407, certif. denied, 130 N.J. 6 (1992). We note that Perry rents stalls directly from the Meadowlands Racetrack in which he performs his work with the horses. Once again, this is indicative of an independent contractor, i.e. "one who carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his [client] as to the means by which the result is accomplished, but only as to the result of the work." Lesniewski, supra, 308 N.J. Super. at 280.

The Board also contends that the purpose of the Act is merely "to fill a gap in workers' compensation coverage unique to the horse racing industry," and this purpose does not apply to a trainer such as Perry, who had the option to purchase coverage for himself. We agree.

Although Perry was not required to carry workers' compensation coverage because he did not have any employees, he could have elected to purchase such coverage. N.J.S.A. 34:15-36 provides as follows:

A self-employed person, partners of a limited liability partnership, members of a limited liability company or partners of a partnership who actively perform services on behalf of the self-employed person's business, the limited liability partnership, limited liability company or the partnership shall be deemed an "employee" of the business, limited liability partnership, limited liability company or partnership for purposes of receipt of benefits and payment of premiums pursuant to this chapter, if the business . . . elects . . . to obtain coverage for [such] person.

Therefore, Perry does not fall in the unique gap that the Act was designed to close.

 
Accordingly, the judgment is reversed and remanded to the Division. We do not retain jurisdiction.

We have been advised by the Board's counsel that Perry also sued the New Jersey Sports and Exposition Authority and was awarded damages by the jury for the injuries he sustained on January 19, 2004. The Authority has appealed this judgment (A-1965-06T1).

N.J.S.A. 34:15-1 to 172.

(continued)

(continued)

9

A-4766-05T2

September 5, 2007