January 17, 2003

OPINION ON MOTION TO IMPLEAD

Petitioner filed a claim petition generally alleging orthopedic, neurological and psychiatric injuries resulting from an automobile accident while employed by High Power Temps ("High Power") as a deliveryman. Respondent answered the claim petition and acknowledged employment at the time of the accident. A motion to join the Second Injury Fund was also filed and thereafter granted.

The present matter concerns a Motion to Implead Pelican Swim & Ski Center, Inc. ("Pelican") and alleges that at the time of the accident petitioner was delivering equipment for Pelican. Specifically, respondent High Power contends that Pelican is a dual or special employer equally responsible for benefits due petitioner. In support of the motion, High Power included an affidavit and letter from its office manager on the procedures for supplying workers by High Power and its relationship with Pelican. It does not appear from these materials that any formal contract that would specify responsibility for workers' compensation claims is entered between High Power and its clients and no such contract has been provided to the court in this case. Petitioner has submitted an affidavit that supports the motion. He states in the affidavit that he was assigned by High Power to work at Pelican some time prior to the accident and that on the date of the accident he was directed to deliver pool supplies by the owner of Pelican in a company vehicle. Further, petitioner presents that he always received direction from Pelican and not High Power on his responsibilities while working at Pelican.

In opposition to the motion, Pelican submits a certification of attorney Mark Zirulnik that demands the right of direct and cross examination according to "the Paco and Hogan decisions and doctrines" but does not include the full name of the cases, any citations or even a discussion of these matters. No other information is submitted by Pelican.

The standards for third party joinder are set forth in N.J.A.C. 12:235-3.4. The moving party must establish "that there exists a substantial likelihood that the party to be joined is or may be liable for compensation benefits to the petitioner." The procedures for a joinder motion are set forth in N.J.A.C. 12:235-3.3 and require a presentation of the factual and legal basis for the relief requested and supporting affidavits of any facts not of record. A motion shall be considered uncontested if responsive papers are not filed.

It is well recognized that an individual may have joint employment making more than one entity or employer responsible for workers' compensation benefits arising from a work accident. See, e.g., Hall v. Fanticone, 322 N.J. Super. 302 (App. Div. 1999), certif. den. 162 N.J 487 (1999); Domanoski v. Borough of Fanwood, 237 N.J. Super. 452 ( App. Div. 1989). As set forth in Gore v. Hepworth, 316 N.J. Super. 234 ( App. Div. 1998), certif. den. 158 N.J. 70 (1999), there are several factors to consider on the issue of dual or special employment but the most important factor is control of the employee's work.

It is not disputed, based on petitioner's affidavit, that Pelican controlled petitioner's work activities on the date of the accident at issue. This employment relationship was part of the arrangement between High Power and Pelican concerning petitioner. All work being performed by petitioner was for Pelican and not High Power. Respondent has not contested by affidavit or otherwise that petitioner's statements are incorrect. Pelican's request for direct and cross-examination is misplaced. There is no material dispute of fact concerning petitioner's activities for Pelican on this record. It is interesting to note that the decision in Gore, supra, concerning employment was based on certifications reviewed by the trial judge in the Superior Court. Moreover, our rule on motions discussed above specifically provides for fact affidavits. If there is a material dispute presented in the affidavits or other materials, a need for trial testimony may be presented.

The standard for review on a joinder motion is substantial likelihood that a party is or may be responsible for the payment of compensation benefits. This standard has been met by the moving party with the petitioner's assistance. Therefore, on this record, I find that there is sufficient basis for joinder of Pelican as a party respondent.

Peter J. Calderone
Director/Chief Judge