Opinion
DOCKET NO. A-3987-12T1
05-13-2014
ISAAC BRIGGS, Petitioner-Appellant, v. MOYE & MOYE ENTERPRISES, LLC, NEIGHBORHOOD HEALTH SERVICES CORPORATION, Respondents-Respondents, and AIM TO PLEASE, Respondent, and UNINSURED EMPLOYER'S FUND, Respondent-Appellant.
David Tykulsker argued the cause for appellant (David Tykulsker & Associates, attorneys; Mr. Tykulsker, of counsel and on the brief). Richard J. Williams, Jr., argued the cause for respondent Neighborhood Health Services Corporation (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Williams, of counsel and on the brief; Sandra D. Lovell, on the brief). Christopher M. Kurek, Deputy Attorney General, argued the cause for respondent Uninsured Employer's Fund (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Kurek, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Alvarez.
On appeal from the Division of Workers' Compensation, Department of Labor and Workplace Development, Claim No. 2012-25560.
David Tykulsker argued the cause for appellant (David Tykulsker & Associates, attorneys; Mr. Tykulsker, of counsel and on the brief).
Richard J. Williams, Jr., argued the cause for respondent Neighborhood Health Services Corporation (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Williams, of counsel and on the brief; Sandra D. Lovell, on the brief).
Christopher M. Kurek, Deputy Attorney General, argued the cause for respondent Uninsured Employer's Fund (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Kurek, on the brief). PER CURIAM
Petitioner Isaac Briggs appeals from two orders of the Division of Workers' Compensation dated December 20, 2012, granting summary judgment in favor of respondent Neighborhood Health Services Corporation (NHSC), and March 15, 2013, denying petitioner's motion for reconsideration. We affirm.
I
The essential facts can be stated briefly. NHSC is a non-profit healthcare organization that operates medical clinics for low-income clients in Elizabeth, Plainfield, Newton, and Phillipsburg. Since approximately 2006, NHSC had contracted with Moye & Moye Enterprises (MME), a janitorial services company, to provide cleaning services for the NHSC facilities in Elizabeth and Plainfield.
NHSC conducted an annual week-long health fair to promote its services to the community. In 2012, NHSC was holding its twenty-second annual health fair starting on August 6, 2012 and ending on August 11, 2012. The health fair was held in different cities on different dates during the week, and was traditionally located on the grounds outside each NHSC facility. NHSC employee Eugene Baucum asked MME's principal, Donald Moye, if he could provide staff to assist with the health fair, although that was not a regular service MME provided under its contract. MME had provided assistance with the fair in 2011, but this time, Moye told Baucum that he could not supply workers for the health fair.
Baucum then recommended that Moye hire Baucum's relative, Tyshun Gourdine, to perform the work. According to Briggs, he and Gourdine, who was related to Briggs as well as to Baucum, operated their own janitorial business, Aim to Please. Briggs and Gourdine wanted to obtain a contract to provide services to NHSC, but Baucum explained that he could not give them a contract for the fair set-up, because of NHSC's anti-nepotism policy and because their company had no track record of providing services to NHSC. Briggs and Gourdine accepted Baucum's suggestion that they work at MME for the week of the fair, thus enabling MME to provide the set-up services NHSC needed and enabling Briggs and Gourdine to demonstrate the quality of their work.
Moye agreed to that proposal. He hired Gourdine and told him to recruit enough workers to perform the job; Moye offered to pay Gourdine and his co-workers $15 per hour for the week's work. In an email to Gourdine, Moye confirmed that he needed "a supervisor" and several workers to perform the fair work. Gourdine then recruited Briggs and Bernard Johnson. MME received $20 per hour from NHSC for performing the set-up work, and in turn MME paid Gourdine, Briggs and Johnson $15 per hour.
Gourdine did not testify at the hearing. However, Moye recalled that he had hired Gourdine to work at the 2011 health fair, at which MME performed set-up duties. On cross-examination, Moye confirmed that he paid Gourdine "as an employee of Moye & Moye." However, Moye later testified that no MME employee supervised the set-up work at the health fair, and he had no idea who supervised the work. Although Moye's August 1, 2012 email to Gourdine stated that a "supervisor" and two assistants were needed, and offered to pay $15 per hour, when Moye was asked who supervised the work in 2012, he tried to avoid admitting that Gourdine was an MME employee. Moye did recall that in 2011, MME employee Kathy Rabb was "personally present" to supervise the MME workers at the health fair.
In his hearing testimony, Briggs stated that he was formally placed on MME's payroll, through MME's manager Kathy Rabb, who had him fill out the necessary paperwork. He and Moye confirmed that MME paid Briggs for his week's work. Briggs testified that he understood that he was MME's employee and that MME had authority to hire or fire him. He testified that he was not NHSC's employee and had no intention of ever becoming an NHSC employee. Rather, his and Gourdine's sole reason for accepting the week's employment with MME was to assist their company, Aim to Please, to eventually obtain a janitorial services contract with NHSC.
While working at the fair, Briggs was required to wear a T-shirt advertising the NHSC fair, but he was also required to wear a badge identifying him as an employee of MME. He, Johnson, and Gourdine were responsible for setting up tables, chairs and tents at different fair locations. The first three days of the health fair took place in August 2012 without incident. On the fourth day, August 9, 2012, Gourdine drove Briggs and Johnson to the Newton fair site. Gourdine drove a truck that was rented by NHSC and used to haul the tables, chairs, tents and other equipment to be set up at the fair. While unloading the truck, Briggs injured his hand and shoulder, when a stack of tables fell on him. Briggs submitted a certification with his petition, attesting that Gourdine witnessed the accident.
After the accident, Baucum drove Briggs to the hospital for medical treatment and, on that same day, notified Moye about the accident. Moye provided Baucum with MME's insurance information to cover the cost of Briggs's hospital services. According to Moye, he thought his commercial liability policy included workers' compensation coverage, but it did not. Briggs returned to work on the last day of the fair, performing only light duty handing out literature. However, his injuries disabled him from performing his usual janitorial duties for Aim to Please or any other employer.
Briggs filed a claim petition and sought temporary medical and disability benefits from NHSC and MME. He later impleaded the Uninsured Employers Fund (Fund), when he discovered that MME did not have workers' compensation insurance at the time of the accident. After hearing testimony from Briggs and Moye, Workers' Compensation Judge Rose Mary Granados issued a written opinion on December 14, 2012, rejecting defense claims that Briggs was a mere casual employee not entitled to compensation benefits, and finding that MME was his employer. While she did not specifically address the issue, it is implicit in her decision that she did not find that NHSC was Briggs's employer.
Briggs filed a motion for reconsideration, which was decided by Judge Vicki A. Citrino, because Judge Granados had retired. Judge Citrino denied the motion on March 15, 2013. In a supplemental written opinion of May 14, 2013, Judge Citrino found that petitioner's post-hearing brief to Judge Granados was not submitted timely, even though the parties were aware that Judge Granados was about to retire. She further stated her understanding that Judge Granados had found that NHSC was not petitioner's employer or otherwise liable to pay benefits. Judge Citrino considered petitioner's reconsideration brief, but found no meritorious reason to reconsider that decision.
II
When reviewing the determination of a workers' compensation judge we apply the same standard "used for review of any nonjury case, which requires the reviewing court to determine whether the findings reasonably could have been reached on the basis of sufficient credible evidence in the record, with due regard to the agency's expertise." Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997); see also Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We do not substitute our "fact-finding for that of the judge of compensation . . . ." Scott v. Foodarama Supermarkets, 398 N.J. Super. 441, 445 (App. Div. 2008). And we give due regard to the trial judge's opportunity to hear the witnesses and evaluate their credibility. Ibid.
On this appeal, Briggs argues that he was an employee of both Moye and NHSC. We cannot agree. Petitioner's reliance on Blessing v. T. Shriver & Co., 94 N.J. Super. 426 (App. Div. 1967), is misplaced. Blessing holds that an employee may have more than one employer: "There is no question that in this jurisdiction an employee, for the purposes of workmen's compensation, may have two employers, both of whom may be liable to him in compensation . . . ." Id. at 429. However, where one business borrows an employee from another business, the "loaned employee" doctrine only applies if the employee can satisfy the following three-pronged test:
When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if:
(a) The employee has made a contract of hire, express or implied, with the special employer;
(b) The work being done is essentially that of the special employer; and
(c) The special employer has the right to control the details of the work.
[Id. at 430 (quoting 1A Larson, Workmen's Compensation (1966), § 48.00, p. 710).]
It is also relevant whether the alleged special employer pays the "lent employee's wages" and "has the power to hire, discharge or recall the employee." Id. at 430; Walrond v. Cnty. of Somerset, 382 N.J. Super. 227, 234-35 (App. Div. 2006).
In Blessing, a security guard employed by the Nielsen Detective Agency and assigned to guard a factory, was found only to be an employee of the detective agency. Blessing, supra, 94 N.J. Super. at 439. While recognizing that employees of temporary staffing agencies might be considered employees of the businesses to which they were temporarily assigned, the court found that the security guard's situation was different. Id. at 436; see also, Walrond, supra, 382 N.J. Super. at 234-35 (discussing the "lent employment" doctrine). While the guard's work benefitted the factory, the detective agency controlled his work, he had no implied or express employment contract with the factory, and he was doing work that the factory expected the agency to perform:
[O]n the basis of the record herein, Nielson was Blessing's general employer and he was not a special employee of defendant. We are persuaded by the fact that Nielson retained, at all times, effective control over the work being done by Blessing; the lack of a contract of hire between Blessing and defendant, and the fact that he was doing the very work that defendant hired Nielson to do by means of its (Nielson's) own employees. We think this case is clearly distinguishable from the worker supply agency cases represented by the Manpower decisions. Therein the special employer exercised control, the employee always knew he would be hired to personally do someone else's work, and he consented to the transfer.As in Blessing, petitioner was employed by MME, which paid his hourly wages. MME also controlled petitioner's work through Gourdine, who was hired to supervise the other two MME employees Moye authorized him to recruit. Further, when petitioner worked at the fair, he was required to wear a badge identifying him as an MME employee.
[Blessing, supra, 94 N.J. Super. at 439 (See Chickachop v. Manpower, Inc., 84 N.J. Super. 129 (Law Div. 1964)).]
Petitioner's reliance on cases such as Pickett v. Tryon Trucking Co., 214 N.J. Super. 76 (App. Div. 1986), certif. denied, 107 N.J. 149 (1987), Smith v. E.T.L. Enterprises, 155 N.J. Super. 343 (App Div. 1978), and Conley v. Oliver and Co., 317 N.J. Super. 250 (App. Div. 1998), is misplaced, because those cases address whether a petitioner was an employee or an independent contractor. Here, there is no dispute that petitioner was employed by MME. No one claims he was an independent contractor or, as in Pickett, an "uncompensated volunteer." Pickett, supra, 214 N.J. Super. at 78. As in Blessing, the fact that NHSC paid MME to provide a service does not, by itself, transform MME's employees into NHSC's employees, even if MME used some of its fee to pay its employees.
Further, petitioner's work setting up tables and chairs was not an integral part of NHSC's regular business of providing health care. Nor is there any evidence that NHSC had the power to hire or fire petitioner; rather, he testified that MME had the power to make those decisions. Moreover, Briggs testified that he knew he was working for MME and had no intention of working as an NHSC employee. Rather, his purpose in taking a week's work for MME was to increase Aim to Please's chances of obtaining a future contract with NHSC.
We likewise find no merit in petitioner's argument that NHSC was a "general contractor" which was liable to provide workers' compensation coverage to the employees of its "subcontractor," MME. This argument is premised on N.J.S.A. 34:15-7 9, which provides in relevant part:
The Uninsured Employer's Fund submitted a letter brief joining in that argument.
Any contractor placing work with a subcontractor shall, in the event of the subcontractor's failing to carry workers' compensation insurance as required by this article, become liable for any compensation which may be due an employee or the dependents of a deceased employee of a subcontractor. The contractor shall then have a right of action against the subcontractor for reimbursement.
[N.J.S.A. 34:15-79(a).]
The statute applies to situations in which a general contractor engages a subcontractor to perform some portion of a project for which the general contractor is responsible. "A subcontractor is one who enters into a contract with a person for the performance of work which such person has already contracted with another to perform. In other words, subcontracting is merely 'farming out' to others all or part of work contracted to be performed by the original contractor." Brygidyr v. Rieman, 31 N.J. Super. 450, 454 (App. Div. 1954). On the other hand, "[a] contractor within the intendment of the statute is one who contracts directly with the owner of a property for construction, or improvement, or repair, or work to be performed." Id. at 453. However, "it has long been held in this State that an owner of property is not a contractor for Workers' Compensation Act purposes." Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 404 (App. Div. 1992).
For example, in Pollack, the owner of a clothing store who contracted for the installation of a piece of machinery in his premises was not a "contractor," and therefore was not liable to provide workers' compensation benefits to an injured employee of the machinery installer. Id. at 406-07. Likewise, in Brygidyr, the owner of a building was not liable to provide workers' compensation benefits to the employee of a window washing company which had contracted to wash the buildings' windows. Brygidyr, supra, 31 N.J. Super. 453.
In this case, there is no record evidence that NHSC was a "contractor" within the meaning of the Act. There is no proof that NHSC had contracted to provide a service to another entity. Rather, NHSC was a property owner, conducting a week-long fair on its premises to advertise its primary activity, which was providing healthcare services. MME was a contractor, not a subcontractor, providing assistance in setting up tables and chairs for the fair. Under those circumstances, N.J.S.A. 34:15-79 does not apply.
To the extent not specifically addressed, petitioner's additional arguments concerning NHSC's liability are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
In an order dated August 5, 2013, we denied NHSC's motion to dismiss the appeal as interlocutory.
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Finally, we decline to address petitioner's Point VII concerning his weekly temporary benefit rate. That issue was not addressed in either of the orders on appeal, and petitioner has not appealed from the order that set his temporary benefit award. Nothing in our opinion precludes petitioner from raising the issue of his weekly wage and benefit rate before the Division of Workers' Compensation, if its procedures permit him to do so.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION