BEFORE: 

            HONORABLE EMILLE R. COX
            Judge of Compensation

APPEARANCES:

            BATHGATE, WEGENER & WOLF, ESQS.
By:       JONATHAN S. FABRICANT, ESQ.
            For the Petitioner

            FREEMAN BARTON HUBER & SACKS, ESQS.
By:       RICHARD A. BARTON, ESQ.
            For the Respondent

On May 19, 2003, Petitioner Steven Behrens sustained cervical, lumbar and sacral injuries when the vehicle he was driving was rear-ended by a tractor-trailer. Petitioner is a full-time employee of the state of New Jersey for whom he works as a draw bridge operator.  At the time of the accident, Petitioner was on his second day of a part-time job assignment with Respondent Environmental Systems and was driving Respondent’s[2] pick-up truck to a job site in Toms River.  He filed a workers compensation claim against Respondent pursuant to N.J.A.C. 12:235-3.2, with an accompanying motion for medical benefits.  More specifically, Petitioner seeks payment of medical bills incurred to date and an order that Respondent provide treatment as recommended by Lance A. Markbreiter, M.D., Petitioner’s evaluating physician.  Respondent does not question the occurrence of the accident but contends that it is not responsible for workers’ compensation benefits to Petitioner since Petitioner was an independent contractor and not its employee as defined by N.J.S.A. 34:15-36.  To support this contention, Respondent cites Martin v Pollard, 271 N.J. Super. 551 in which the Appellate Division held that the Petitioner was an independent contractor, or a casual employee, and was therefore not entitled to workers’ compensation benefits.

I find Respondent’s reliance on Martin to be misplaced. Respondent draws a parallel with the fact that, in both cases Petitioners worked part-time.  It points to the fact that the Appellate Division held that the Martin Petitioner was either an independent contractor or casual employee (the precise label is immaterial), and was therefore not entitled to receive workers’ compensation benefits pursuant to N.J.S.A. 34:15-36.  In Martin, the Petitioner was engaged sporadically to perform various odd jobs for Respondent.  He was injured when he fell from a ladder while applying a water seal product to Respondent’s vacation house. Respondent supplied only the water seal. Petitioner supplied his own equipment and related job materials. Petitioner was to be paid, after he concluded the project, at the rate of $10.00 per hour. He kept track of his own hours and was scheduled to be paid at the conclusion of the project.

In the instant matter, the accident occurred on Petitioner’s second day on the job. However, unlike Martin, there was clearly an expectation by the parties of an ongoing employment relationship. See Berkeyheiser v Woolf, 71 N.J. Super.171.  Petitioner testified that he regularly worked part-time jobs to supplement his income.  He had worked for ten years as a bartender - employment that had recently ended when that establishment became insolvent.  Petitioner responded to Respondent’s classified advertisement in the local newspaper and was interviewed by Respondent, at which time the terms of employment, including hours of work and salary, were addressed. Respondent testified that he routinely hired part-time help and that Petitioner was being hired to replace another part-time employee who had recently left.  The conduct of the partiers in this instance does not suggest the sporadic working relationship that was present in Martin.

Respondent argues, alternatively, that Petitioner was and independent contractor and therefore not entitled to workers’ compensation benefits.  In support of this contention, Respondent offered into evidence a purported contract titled Subcontractor Agreement Form.  The form reads, in its entirety:

I Steven Behrens agree to provide subcontractor services on

a (sic) as needed basis. I understand that I will provide my own health, workman (sic) compensation, general disability and liability insurance. I also agree to provide Environmental Systems, James Golden copies of all existing insurance certificates. I agree to hold harmless and release James Golden/Environmental Systems of any and al liability, including general liability and workmen’s compensation and general liability claims (sic).

Accepted By: (Petitioner’s signature and SS#)

Respondent acknowledged that he prepared the document himself without the assistance of an attorney.  Petitioner testified that he had no recollection of having signed that document but admitted that it was his signature that was affixed to it.

The above referenced agreement is of little, if any, legal significance.  It was prepared by Respondent - a contract of adhesion which this Court would have been constrained to construe in a light most favorable to Petitioner, given the subject matter of the contract, the significant public policy encompassed in its intent and the relative bargaining positions of the parties. See, for example, Community Realty Management v Harris,

155 N.J. 212 (leases for decent subsidized housing are essentially contracts of adhesion.  Such contracts should be strictly enforced against the landlord who prepared them).  Petitioner had no recollection of having signed the document, suggesting that there was no meaningful discussion on the subject.  The document falls woefully short of the waiver requirements of N.J.S.A. 34: 15-9.  Respondent’s own testimony reveals that his primary concern was the cost of insurance and it was his intent to have Petitioner look to his private health insurance plan for coverage in the event of an injury.  He even admitted that, although the document required proof of insurance by the purported subcontractor, he did not require that Petitioner produce evidence of coverage before beginning the job. As stated previously, this Court views the document as an obvious attempt to circumvent the requirements of the Workers’ Compensation Act and will not validated such conduct.

When determining whether there is an employer - employee relationship or whether one is an independent contractor, courts within this jurisdiction apply the Control Test or the Relative Nature of the Work Test. Tofani v Lo Biondo Brothers Motor Express, Inc.,

83 N.J. Super. 480 (App.Div.) aff’d, 43N.J. 494 (1964), Hannigan v Goldfarb, 53 N.J. Super., 190 (App. Div. 1958).  Neither test provides Respondent a basis to conclude that Petitioner was an independent contractor at the time of the accident.  Respondent was engaged in the business of removing underground oil storage tanks.  He testified that, from time to time he needed a second person to assist in securing the tank while Respondent used a backhoe to remove it from the ground. Petitioner exercised no control over the time or manner in which the work was performed.

In the business relationship between this Petitioner and Respondent, Petitioner is entirely dependent upon the Respondent for any economic benefit.  Respondent controlled the hours that Petitioner worked and the rate of pay based on those hours.  Respondent testified that his newspaper advertisement was for a part-time laborer and not for a subcontractor. He even had Petitioner perform miscellaneous tasks around the office so that he can evaluate Petitioner’s work ethic before Petitioner was given his first job assignment. Petitioner had no equipment of his own.  Everything, including the vehicle in which Petitioner was injured, was provided by Respondent.

Given the facts of this case, this Court finds that Petitioner was an employee within the meaning of N.J.S.A. 34:15-36. The injuries that he sustained on May 19, 2003 are compensable. Respondent will arrange forthwith for the necessary diagnostic and therapeutic treatment of Petitioner.

Counsel for Petitioner shall prepare the required order for this Court’s signature.

____________________________

Honorable Emille R. Cox
Judge of Compensation

August 5, 2004