GEORGE GIALALIDIS v. DENNY WIGGERS LANDSCAPING CO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4354-07T14354-07T1

GEORGE GIALALIDIS,

Petitioner-Respondent,

v.

DENNY WIGGERS LANDSCAPING CO.,

Respondent-Appellant.

_____________________________________________

 

Submitted November 19, 2008 - Decided

Before Judges Rodr guez and Newman.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 1999-1964.

Law Offices of Joseph Carolan, attorneys for appellant (Jorge Vergne, on the brief).

John J. Feczko, attorney for respondent.

PER CURIAM

On July 31, 1998, petitioner George Gialalidis fell through a skylight while constructing a garage on respondent-appellant Denny Wiggers Landscaping Company's (Wiggers) property. He sustained serious and multiple injuries. The extent of the injuries and the amount of the award are not in question. The issue is whether petitioner, a carpenter by trade, was an employee of Wiggers or an independent contractor at the time of the accident. Workers' Compensation Judge Fader concluded that petitioner was an employee of Wiggers under both the right to control and the relative nature of the work tests. Wiggers appeals. We affirm.

The relevant facts are as follows. Petitioner had been hired by Wiggers to perform various jobs beginning in December 1996 through the date of the accident. Petitioner performed a variety of work from building decorative holders for plants, to building refrigerators for flowers, hanging wallpaper and fixing leaking roofs. He did work as well for Donald Wiggers, the father of Denny Wiggers.

Denny Wiggers paid him twenty dollars an hour for his services, although this was not the amount of payment ordinarily charged by petitioner. Petitioner had his own business known as "George's Home Repairs." When doing a job for his business, he would provide an estimate to the customer for the proposed project. Petitioner has his own truck, but was instructed by Denny Wiggers to remove the sign identifying his business located on the truck when he worked for Wiggers.

In July 1998, Denny Wiggers contacted petitioner to build a garage at his Closter storage facility. There were no formal drawings or blueprints for the garage. Petitioner worked Monday through Saturday for the three weeks leading up to the accident and was paid twenty dollars an hour as previously agreed. The checks were made out to him personally, not to the name of his incorporated business.

Petitioner would show up every day and either Denny Wiggers or his father Donald Wiggers would meet with him and tell him what to do. Petitioner was told how many windows the garage would have, their placement and what kind of wood to use on the building and the color of the roof shingles. Petitioner would provide a list of materials based on what either Wiggers described to be done. Denny Wiggers would call the lumber yard located across from the property in Closter for delivery or have another member of his staff deliver the materials. If petitioner needed help, Denny Wiggers would arrange for one of his other employees to assist petitioner.

Donald Wiggers was on the site daily. In his son's words, he was a "real quality control type of person." Donald Wiggers testified that the building was of existing steel frame construction and that petitioner was hired to put the wood on the roof and on the sides, ". . . just basically fill in the dots." The idea for the skylight was that of Donald Wiggers. He also wanted a certain overhang on the building so that any gutter against the building would overhang sufficiently to protect the building sides from any dripping.

In deciding that petitioner was an employee of Wiggers when he fell on the job site, Judge Fader made the following findings of fact and conclusions of law:

As summarized by the Appellate Division so succinctly in Tofani v. LoBiondo Brothers Motor Express, 83 N.J. Super. 480, aff'd 43 N.J. 494 (1964) "under the control test, the right to control is usually inferred from direct evidence of: Right of control and exercise of control; right of termination; method of payment; and who furnishes the equipment. Of the four factors evidencing right of control, any single one is virtually proof of the employment relation, while contrary evidence as to any one factor is, at best, only mildly persuasive evidence of constractorship, and sometimes is of no force at all.

Independent contractorship then is established usually only by a convincing accumulation of these and other tests, while employment can, if necessary, often be solidly proved on the strength of one of the four items; direct evidence of control; method of payment; furnishing of equipment and right to fire." Id. at 487.

Applying the guidelines of Tofani, it is evident to the court that under the control test Mr. Gialalidis was clearly an employee for purposes of our statute. First, the testimony of all the witneses corroborates that respondent had direct control over petitioner's day to day activities. Respondent's letter brief filed with the court concedes that the Wiggers gave petitioner directions as to the details of the work, but argue that petitioner did the work according to his own methods. The court disagrees. In the court's estimation, in light of all the evidence, Mr. Gialalidis was hired not for his carpentry expertise, but as a laborer to "fill in the dots" at the direction and control of respondent.

Second, it's uncontested that petitioner was paid by the hour rather than for the overall project. Although Mr. Wiggers testified that petitioner would give him an invoice under his corporate name for monies due, Mr. Wiggers was unable to produce any records from 1998 evidencing these alleged invoices. Petitioner testified that he never gave Mr. Wiggers an invoice, he merely kept track of his hours (see P-1 in evidence) and then told Mr. Wiggers how much he was owed. The one and only check produced was made out to petitioner, personally, not to the business George's Home Repair. (see P-2 in evidence).

Lastly, it is uncontested that respondent supplied and paid for all the materials petitioner used. Respondent's counsel argues that petitioner supplied his own tools as evidence of an independent contractor relationship. However, this test only refers to equipment of considerable size and value, not items like saws and hammers (see Tofani v. LoBiondo Brothers Motor Express, supra, 83 N.J. Super. at 487).

Finally, respondent contends that under the relative nature of the work test, that petitioner should be considered an independent contractor because of the work performed by petitioner was not an integral part of respondent's business and petitioner was not economically dependent upon the respondent.

While the court is not aware of any case law holding that the petitioner must satisfy both (court's emphasis) the control test and the relative nature of the work test, for the sake of argument I make the following comments:

Counsel argues that respondent is in the business of landscape design and construction, and therefore, building a garage was not an integral part of the regular business of respondent. In support of this position, respondent's letter brief summarizes respondent's business as the business of landscaping design and construction, building of retaining walls, plantings, trees, shrubs, paving stones, waterfalls, fishponds and patios. Respondent contends that petitioner is a skilled carpenter and that respondent is not in the carpentry business.

However, Mr. Wiggers testified that his business has two physical locations. A retail garden center in Paramus, New Jersey, and a storage yard where the heavy equipment and machinery is kept, in Closter, New Jersey. The accident in question happened at the Closter facility, during the construction of the garage.

The court believes the work done by the petitioner constructing a garage, was an integral part of the regular business of the respondent at that particular facility as a storage yard needs storage capability. Again, the items stored at this facility consisting of equipment of considerable size and value, were an integral part of respondent's business.

Next, respondent contends that since petitioner testified that he received more income from his own business during the course of the year than from the job he did for respondent, that petitioner was not economically dependent upon respondent (see R-2 and R-3 in evidence). However, the petitioner testified that he was not conducting a separate and independent business at the time of the accident, and that this was the only job he was working on. (See petitioner's transcript 10/2/06, p. 20, lines 12-19).

The court is of the opinion that although petitioner had other jobs throughout the year, for the period of time that petitioner worked for respondent constructing the garage, he was economically dependent on respondent (see Tofani v. LoBiondo Brothers Motor Express, supra, 83 N.J. Super. at 493) wherein petitioner, who owned a tractor and did trucking for a living, was found to be an employee of respondent who had leased petitioner's equipment for a three month period.

Therefore, utilizing either the nature of the work test or the control test, petitioner is an employee for purposes of our statute, and thereby entitled to all the benefits under the statute, including, but not limited to, temporary total disability, related and necessary medical treatment and permanent disability.

On appeal, Wiggers contends that the decision of the judge of compensation was not supported by competent and relevant evidence presented on the issue of employment and should be reversed. We disagree and are satisfied that the trial court's findings could reasonably be made on sufficient credible evidence in the record as a whole, considering the proofs with due regard for the trial judge to assess credibility. Close v. Kordulak Brothers, 44 N.J. 589, 599 (1965). We affirm substantially for the reasons expressed by Judge Fader in her oral decision of April 8, 2008. We add only the following brief comment.

The decision here is a mirror image of the facts presented in Kertesz v. Korsh, 296 N.J. Super. 146 (App. Div. 1996). There, a sheetrocker with thirty years' experience was hired to help sheetrock a townhouse unit consisting of four levels. Id. at 150. The sheetrocker was found to be an employee when he fell on the job site and was injured. Id. at 157. While he had his own business, that business was slow, and he worked for Korsh three or four times per month. Id. at 156. Korsh supplied the other labor and materials used on the job. Id. at 150. The sheetrocker was not in need of substantial direction because he was experienced at his job. Id. at 155-56.

The building of the townhouse unit was an integral part of the business. Id. at 155. During the time period, the sheetrocker was financially dependent on Korsh even though he had his own business and worked for Korsh only three or four times per month at a rate of $120 per day. Id. at 156. This court concluded that this was not employment arising by chance or accident and found that the relative nature of the work test was satisfied. Id. at 156-57.

Like the petitioner in Kertesz v. Korsh, petitioner here had his own business, and was an experienced carpenter. He was working exclusively for Wiggers for the three weeks leading up to the accident and was paid on an hourly basis. Petitioner was financially dependent on Wiggers during this time period. The building under construction was an integral part of the storage facility used in connection with Wiggers' landscape business.

Petitioner was also told in detail what had to be done on a daily basis and what materials should be used in accomplishing the job. Both the relative nature of the work and right to control tests were satisfied here. Indeed, the facts here are even more compelling than those in Kertesz v. Korsh, supra.

Affirmed.

(continued)

(continued)

9

A-4354-07T1

December 11, 2008