BEFORE: THE HONORABLE J. WILLIAM BOYLE
JUDGE OF COMPENSATION

APPEARANCES: SHEBELL & SHEBELL, L.L.C., ESQS.
By: RAYMOND P. SHEBELL, ESQ.
For The Petitioner

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

In this claim petition 97-010241, the matter has been bifurcated to determine whether Randy Fuller was an employee of the respondent, L&L Floor Covering, and, if so, whether he suffered a compensable accident on November 18, 1996. The respondent has denied that the petitioner was an employee and contends that he was an independent contractor. In addition, the respondent denied that the petitioner suffered a work-related injury.

The circumstances of the petitioner’s hiring and the nature of the service that he performed appears to be relatively undisputed. The owner of the respondent, Lois Leone, testified that he runs a business from a warehouse location; the sole business of which is to solicit carpet installation jobs from retailers then arrange installation of the carpet into customer’s homes. The respondent is not in the business of selling carpet, simply installing it. Leone indicated that he secured installers by placing an advertisement in the newspaper which solicited independent contractors to do his installation work. He would request proof of workers’ compensation insurance from the installer and once the installer had provided the appropriate documentation, give them daily jobs and pay the installer by the yard of carpet installed.

Leone testified that he became acquainted with Fuller when Fuller’s helper came into the warehouse and offered to do "contract work." Leone testified that he would give them work if Fuller came in and provided proof of liability and compensation insurance. When Fuller complied, Leone started to give him work. Each day, Leone would give him a list of jobs for the day, and at the end of the week, the petitioner would submit a bill for the work done. Leone paid him by the yard with no deductions taken out of the check. Leone testified that in the three week period that Fuller worked for him, Fuller worked about 12 days.

The petitioner confirmed that he had been in the business of installing carpets for about 20 years, had his own business name, and used his own truck and tools in the course of his work. He saw an ad placed by Leone which solicited carpet installers for full-time work. Fuller answered the ad and, at Leone’s request, obtained workers’ compensation insurance. After agreeing to perform the work for Leone, Fuller testified that he worked exclusively for L&L about five or six days per week. He would arrive at L&L about 7:30 in the morning, pick up a work order from Leone. Then, either he or one of Leone’s employees loaded the carpet onto his truck. Fuller arranged the time of the installations with the customers, then went to the customer’s premises and laid the carpet using his own tools. The petitioner occasionally had a partner help him if the job entailed moving a lot of furniture. At the end of the week, L&L would issue a check made payable to Fuller based upon the number of yards he installed that week.

In determining whether Fuller was an employee of the respondent, the appropriate test to be applied is the relative nature of the work test. See Re/Max v. Wassau Ins. Companies, 316 N.J. Super. 514 (App. Div. 1998). While formerly cases centered on the employer’s ability to control the nature of the work and the daily functions of the employee, case law has since recognized that, in many instances, employees are highly skilled and capable of working independently of direct supervision. See Conley v. Oliver & Co., 317 N.J. Super. 250, 254-55 (App. Div. 1998). This does not preclude them from being designated and employee for the purposes of the Worker’s Compensation Act. See Kertesz v. Korsh, 296 N.J. Super. 146, 155-56 (App. Div. 1996).

Under the relative nature of the work test, a court must determine whether the work done by the petitioner was an integral part of the regular business of the respondent and whether the petitioner had substantial economic dependence on the respondent. See Conley, supra, 317 N.J. Super. At 256. This test has clearly been met. & L is solely in the business of installing carpet into the homes of customers who have purchased carpet from a retailer. Fuller’s work was directly related to fulfilling L&L’s business goals. He appears to have performed the exact same job as all of the other installers who worked for L&L and was a "cog in the wheel of respondent’s operation." See Caicco v. Toto Bros, Inc., 62 N.J. 305, 310 (1973). Consequently, since the work in which Fuller was hired to complete was integral to the business function of L&L, he was an employee under the relative nature of work test.

Moreover, although Fuller’s employment was brief, Fuller has demonstrated that he was substantially economically dependent upon L&L. Fuller’s testimony is uncontradicted that he was working solely for L&L at the time, and I find him credible in this regard. Even Leone conceded that the petitioner worked for him 12 of 15 days before he stopped due to injury. Laborers with even more sporadic attendance have been found to be employees when they labored in the respondent’s regular business. See Kertesz v. Korsh, supra, 296 N.J. Super. 146 (App. Div. 1996). Thus, the second prong of the relative nature of the work test is met.

Thus, the facts compel the conclusion that Fuller was an employee for the purposes of workers’ compensation coverage. My understanding from Leone’s testimony is that he hoped to avoid workers’ compensation issues by advertising only for independent contractors and making all applicants adhere to that denomination. However, a business dependant upon manual labor cannot function without employees and the liberal coverage provisions of the Workers’ Compensation Act dictate that a worker performing labor is an integral part of the respondent’s business cannot be denied compensation despite the label that the employer places on the relationship.

The second issue to be resolved is whether the petitioner suffered a compensable injury. In this regard, I find that the petitioner was believable. He explained in detail that he installed carpet in a house where it was difficult to maneuver and, after lifting a particularly heavy roll of carpet, felt a tightening sensation in his low back. Although he finished the job, his back "was hurting" and, after a few days, intensified to such a point that when he tried to get up from his couch, he fell to the floor. The petitioner testified that he told Leone of the injury and that he was incapable of working.

Leone, on the other hand, testified that the petitioner did not report a work related injury but simply stopped showing up for work. Leone claims that he contacted Fuller, who said that he twisted his back while he was on the couch. I find Leone’s testimony less than credible in this regard. I believe that the petitioner reported the injury to Leone, but that Leone has omitted significant facts from his testimony. Frankly, I find it more believable that the petitioner contacted Leone and reported the injury, rather than Leone’s testimony that he called the petitioner after Fuller did not show up for work for a few days. My impression from Leone’s testimony was that "if a crew doesn’t show, they don’t work." I doubt that he affirmatively contacted people he perceived as independent contractors when they didn’t show up for a day’s work. Therefore, since I find the petitioner as a whole to be more credible that Leone, I find as a fact, that the petitioner did suffer a work related injury and that it was timely reported to an authorized representative of the respondent.

The matter will be relisted to determine liability for outstanding medical bills, the duration of temporary disability and the extent of permanent disability. Respondent is assessed a $130.00 fee payable to John F. Trainor and petitioner’s attorney shall submit the appropriate form of Order.

J. William Boyle, J.C.

Dated: March 31, 2000