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WALTER F. HIRES,

                        Petitioner,                                            

                                                                                    RESERVE DECISION

                        Vs.

COUNTY OF ATLANTIC and                                  

CITY OF ATLANTIC CITY                                      

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B E F O R E:                THE HONORABLE COSMO A. GIOVINAZZI, III
                                    JUDGE OF COMPENSATION

A P P E A R A N C E S: 

                                    REYNOLDS & SCHEFFLER, LLC
                                    BY:      THOMAS F. REYNOLDS, ESQ.
                                                1200 West Mill Road
                                                Northfield, New Jersey  08225
                                    Attorney for Petitioner
 

                                    OFFICE OF THE COUNTY COUNSEL, ATLANTIC COUNTY
                                    BY:      THERESA HILES, ESQ.
                                                Atlantic County Claim, Department of Law
                                                1333 Atlantic Avenue
                                                Atlantic City, New Jersey  08401
                                    Attorney for Respondent, County of Atlantic

                                    OFFICE OF THE CITY SOLICITOR
                                    BY:      MARCIA ALLEN-PHILLIPS, ESQ.
                                                1301 Bacharach Boulevard
                                                City Hall, Room 707
                                                Atlantic City, New Jersey  08401
                                    Attorney for respondent, City of Atlantic

PROCEDURAL HISTORY

Petitioner, Walter F. Hires, a detective in the Atlantic City Police Department, filed claim petition number 2001-39136 on December 14, 2001, alleging stress and anxiety with physical manifestation due to constant exposure to homicide investigations between April of 1999 and October 1, 2001.  Respondent, City of Atlantic City (hereinafter Atlantic City) filed an answer to the claim petition on February 6, 2002 denying that petitioner’s alleged stress and anxiety arose out of and in the course of employment.  Notwithstanding this denial, however, petitioner was placed on leave by Atlantic City on or about October 1, 2001.  Respondent subsequently had petitioner examined by Doctor David Scasta on May 16, 2003.  Doctor Scasta diagnosed a mood adjustment disorder and major depressive disorder related to petitioner’s work as a homicide detective.  On November 19, 2003, Atlantic City filed a motion to implead the County of Atlantic (hereinafter Atlantic County) as a joint employer of the petitioner, based upon the fact that the petitioner had been assigned to perform forensic investigative work with the Atlantic County Major Crimes Unit commencing in 1999.  On February 19, 2004 an order was entered impleading Atlantic County as an additional respondent.  The parties subsequently agreed that petitioner had a permanent partial total disability of 17 ½ percent based upon post-traumatic stress disorder.  An Order Approving Settlement was entered on September 22, 2004 by which Atlantic City agreed to pay petitioner 17 ½ percent of permanent partial total disability equal to $17,421 as well as temporary disability benefits for 19 and 2/7 weeks.  The settlement was to be paid by the City, with the understanding that a hearing would be held to determine whether the City was solely responsible to provide workers’ compensation benefits to the petitioner, whether the County was responsible as a special employer, or whether both the City and County were responsible for workers’ compensation benefits as joint employers.

STATEMENT OF FACTS

Petitioner, Walter F. Hires, began working as a patrolman in the Atlantic City Police Department in October of 1992.  Petitioner was assigned to work as a Forensics Detective in Records and ID in 1994, and worked in that capacity until April of 1999.  In 1999, petitioner learned that Bill Hamilton, an Atlantic City Forensics Detective assigned to the Major Crimes Unit in the Atlantic County Prosecutors Office was going to retire and indicated to his supervisor, Sergeant Scopa, that he would like to replace Hamilton as a forensic detective in the Major Crimes Unit.  Before receiving the assignment, petitioner was interviewed by Lieutenant Chris Welman who supervised the daily operations of the Major Crimes Unit.  Subsequently, the Chief of the Atlantic City Police Department assigned petitioner to replace Detective Hamilton as a Forensics Detective in the Atlantic County Major Crimes Unit.  The assignment was accepted by the County and petitioner began working in that position in April of 1999. 

For the first two or three months, petitioner worked under Detective Hamilton before his retirement.  Thereafter, petitioner was assigned to a Major Crimes Squad which primarily investigated homicides in Atlantic County.  He also assisted in the investigation of other serious crimes in Atlantic County pursuant to the Unit’s willingness to assist municipalities where assistance was needed.  Petitioner’s squad was initially on duty one week and on call one week.  Subsequently, because of the illness of the other Forensics Detective in the Major Crimes Unit, petitioner was on call for every homicide which occurred in Atlantic County during a large part of his service with the Major Crimes Unit.

In approximately December of 2000, petitioner approached Sergeant Scopa, who had been his supervisor in the forensics unit at the Atlantic City Police Department and asked to be transferred out of Major Crimes and back to the Atlantic City Police Department.  Petitioner’s request was subsequently denied after Sergeant Scopa spoke with one or more deputy chiefs in the chain of command.  The explanation given to the petitioner for the denial of his request was that he had a plumb position and should not have anything to complain about.  Petitioner explained that he had made the request to be transferred back to the Atlantic City Police Department because he  had become stressed by constantly being “on call,” and had been unable to back away from homicide investigations, especially those which troubled him.  Petitioner identified two such investigations.  One was the homicide of a child that took place in Pleasantville, and the other was a homicide in Atlantic City where the victim was stabbed about fifty six times.  Petitioner apparently began having problems with loss of temper, panic attacks and reflections about some of the more violent homicides.

Subsequently, in approximately August of 2001, petitioner also spoke with Captain Flipping of the Atlantic City Police Department about being transferred out of Major Crimes and back to Atlantic City.  His discussion with Captain Flipping apparently centered around the difficulty of his constant on call status, and how this was causing problems in his home life.  It does not appear that petitioner revealed the extent to which his investigations were causing him stress and anxiety although Captain Flipping attempted to assess the impact upon the petitioner.  This subsequent meeting with Captain Flipping did not result in a transfer of the petitioner back to Atlantic City. 

In the latter part of September, 2001 Captain Flipping received a telephone call from Detective Michael Grant, an Atlantic City Police Officer who was assigned to the Atlantic County Major Crimes Unit as an Investigator.  Grant apparently informed Captain Flipping that petitioner was having problems with stress, and made comments to Grant which led Grant to believe that petitioner would harm himself or his family.  As a result, Captain Flipping directed Detective Grant to go to the petitioner’s home and take his firearm and place it in safe keeping.  Captain Flipping also sent Detective Rick Roth and Sergeant John Hogan of the Atlantic City Police Department to petitioner’s home to speak with petitioner about his problems and assure him that the police department would take care of him.

After being assigned as a forensics detective in Atlantic City in 1994, petitioner received a substantial amount of training in forensics.  After his assignment to the Major Crimes Unit, Atlantic County sent petitioner for additional training, including a three week residential training course at the FBI Academy.  However, during the entire two and one-half year period that petitioner was assigned to the County Major Crimes Unit, all salary and benefits were provided by Atlantic City.  He received the same salary as other Atlantic City detectives, and health and other benefits were also provided by Atlantic City.  He continued to receive the same vacation and sick days as other Atlantic City police officers, and submitted sick slips to Atlantic City Detective Grant.  Petitioner’s time sheets, on a form entitled “City of Atlantic City” (R-2) included the names and time of all Atlantic City police officers assigned to the Major Crimes Unit of Atlantic County.  These forms were signed by Lieutenant Wellman, indicating that the persons named had worked the hours indicated for the County, and were subsequently acknowledged by a Deputy Chief in Atlantic City.  During the entire period of his assignment to the Major Crimes Unit, petitioner remained subject to the collective bargaining agreement between the Atlantic City Police Department and the Police union to which petitioner belonged.  The petitioner received no enhanced vacation or other benefits from the county as a result of his assignment by the city to the Major Crimes Unit.  Petitioner was still obligated to attend required training with the Atlantic City Police Department, including firearms qualification and was subject to recall by the Atlantic City Police Department at any time.  One on occasion, during the weekend of the Miss America Pageant, the petitioner was called back to duty with the Atlantic City Police Department so that adequate manpower was available in the event of a labor strike.  During his entire assignment with the Atlantic County Major Crimes Unit, the petitioner considered himself in all respects a member of the Atlantic City Police Department and testified that he was proud to be an Atlantic City Police Officer.

The Major Crimes Unit was initially created by the Atlantic County Prosecutor after the reinstatement of the death penalty in New Jersey.  The County Prosecutor is a constitutional officer who is nominated and appointed by the Governor with the advice and consent of the Senate.  Pursuant to the New Jersey Constitution, the County Prosecutor is the foremost representative of the executive branch of government in the enforcement of criminal law.  (R-4)  Pursuant to the Criminal Justice Act of 1970 (N.J.S.A. 52:17B-97 et seq.) County and Municipal police officers are required to cooperate with and aid the attorney general and the several county prosecutors in the performance of their respective duties.  In State v. Winne, 12 N.J. 152 (1953) the Supreme Court indicated that the County Prosecutor is in a position to command the cooperation of all law enforcing authorities in the county.  Pursuant to statute, the prosecutor has the duty to “use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the law.” N.J.S.A. 2A:158-5.  The Criminal Justice Act of 1970 has been interpreted as giving the County Prosecutor authority to command the cooperation of local departments including the assignment of specific municipal officers to assist the prosecutor in the performance of his duties for an unspecified period of time, without reimbursement. 

The Atlantic County Prosecutor superceded municipalities in the investigation of homicides in 1976 in order to have thorough, consistent investigation of homicide cases throughout Atlantic County.  However, the Atlantic County Prosecutor has never exercised his authority to require a local department to assign a specific officer to the prosecutor’s office for an unspecified period of time.  Instead, he has been able to obtain the assistance of local officers for various periods of time through the development of a cooperative atmosphere with local departments.  The City of Atlantic has been assigning city police officers to assist the County Prosecutor in the investigation of major crimes, including drug crimes since the mid 1970’s.  The obvious advantage to the County Prosecutor is that he can obtain the investigative services of trained, qualified and experienced police officers who can hit the ground running in the investigation of major crimes.  There is minimal cost to the County Prosecutor, since assigned police officers are paid salary and benefits by their local departments.  In the case of Walter F. Hires, he was an experienced forensics investigator who was assigned to Major Crimes to replace William Hamilton, another Atlantic City Police Officer who was retiring.  The County Prosecutor was then able to utilize an experienced forensic investigator to do investigative work in major crimes throughout the entire county.

As Chief Snellbaker pointed out, the city sends officers to the Major Crimes Unit who are experienced and very qualified, “an all star selection” who won’t embarrass the city or cause a problem with the county.

In return, there are also benefits to Atlantic City in assigning some of its officers to investigate major crimes and narcotics for the County Prosecutor.  Such assignments of local officers gives the city access to homicide investigations for homicides which occur in Atlantic City, and also provides intelligence information which impact upon the investigation of other crimes, such as narcotics.  Such an assignment is a benefit to the career of the city police officer who receives training and experience in homicide investigations, and then carries this experience back to the city.  Additionally, the county provides enhanced training to major crimes investigators which would not generally be available through the local department.   The assignment of local officers to major crimes gives the Atlantic City Police Department the opportunity to follow the investigation more closely to understand what is happening in the investigation, and to coordinate its own investigative efforts of related criminal activity with those of the Major Crimes Unit.  Assignment to the Major Crimes Unit is a boost to the resume of the officers assigned and allows each officer to obtain investigative experience not available to a vast majority of municipal police officers.  This not only enhances the reputation of the officer, but sharpens his investigative skills.  Since most officers return to continue working in the Atlantic City Police Department with enhanced investigative skills, the department has more highly trained and efficient officers to carry out its mission.

It is logical that the City of Atlantic City would assign investigators such as Detective Hires to the Major Crimes Unit since in the last ten years, one half of all homicides in Atlantic County occurred in Atlantic City, or had an Atlantic City connection.  It is noteworthy that one of the Atlantic City officers assigned to major crimes routinely attends weekly staff meetings in Atlantic City and thus provides a valuable source of information to the city police department, allowing the department greater intelligence and a better understanding of the dynamics of various criminal enterprises, such as criminal activity involving drugs.  Additionally, by maintaining this cooperation, the city is often able to assign the initial city detective who responds to a major crime to work with the major crimes investigative team. 

While assigned to the county’s Major Crimes Unit, Atlantic City officers are supervised by county personnel.  Thus, Detective Hires’ immediate supervisor was Sergeant DeShiels, and the overall operation of the Major Crimes Unit was supervised by Lieutenant Wellman.  On the other hand, the city retained the ability to recall any officer assigned to Major Crimes at any time without the consent of the County Prosecutor. 

LEGAL PRINCIPLES AND CONCLUSIONS

In impleading Atlantic County in this case, the City has taken the position that as a result of the assignment of Walter F. Hires to the Major Crimes Unit, the County of Atlantic became a special employer of Mr. Hires and is therefore responsible to provide him with workers’ compensation benefits as a result of his occupational injury.  The County denies that it is a special employer of the petitioner, contending that petitioner was simply carrying out his duties as an Atlantic City police officer, and that the facts and circumstances surrounding such assignment do not make the County a special employer.  

In Domanoski v. Borough of Fanwood, 237 N.J. Super. 452 (App. Div. 1989) the Appellate Division considered the case of an off duty police officer who was working for A&P Supermarket as a security guard when he was injured while apprehending a shoplifter.  In discussing the standard to be applied in determining whether the petitioner was an employee of one or both of the employers, the court stated:

“In determining which among multiple employers are liable for workers’ compensation, this court has noted the indicia of employment that ordinarily require evaluation, including the existence of a separate agreement between the employee and each employer, the determination of whose work is being done at the time of the compensable injury, which has a right to control the details of the work, which pays, and which has the power to hire, discharge or recall the employee.  See Blessing v. T. Shriver and Company, supra, 94 N.J. Super. at 430, 228 A.2d 711.  The relative weight to be accorded these factors and the manner in which they are to be balanced are not, however, as we pointed out in Blessing, subject to mechanical or automatic application.  Rather, the criteria determinative of the employment relationship must be “rationalized and applied so that each case may be considered and determined upon its own particular facts.”  Id. at 434, 228 A.2d 711. and as we held in Blessing, in the dual employment situation, the most significant inquiry is the determination of “whose interest the employee was furthering at the time of the accident…”

Applying both the “whose interests” test as well as the traditional indicia of employment, the court held that the petitioner was an employee of both respondents for workers’ compensation purposes.  As to the Borough of Fanwood, the court noted that the petitioner was acting as a police officer in making the arrest, and was required to perform that function in the manner and under standards applicable to all police arrests.  At the same time, as a security guard for A&P, petitioner was performing the duties of that job by attempting to apprehend a shoplifter.  The court was satisfied that in making the arrest, the petitioner was serving the public interest as well as a private one.

The court in Domanoski further noted that the definition of employment is also dependent upon the context in which the question arises, and what may be characterized as employment for purposes of remedial social legislation such as the Workers’ Compensation Act may be otherwise characterized in other contexts.

The city relies upon Kelly v. Geriatric and Medical Service, 287 N.J. Super. 567 (App. Div. 1996), Murin v. Frapaul Construction Company, 240 N.J. Super. 600 (App. Div. 1990), and Antheunisse v. Tiffany and Company, Inc., 229 N.J. Super. 399 (App. Div. 1988) in support of its argument that the county was a special employer which is solely liable for the payment of workers’ compensation benefits.  These cases set forth a three pronged test taken from Professor Larson’s Treatise on Workers’ Compensation, which is as follows:

“When a general employer lends an employee to a special employer, the special employer becomes liable for workers’ compensation only if:

(1)   the employee has made a contract of hire, express or implied, with the special employer;

(2)   the work being done is essentially that of the special employer; and

(3)   the special employer has the right to control the details of the work.”

Applying these tests to the instant case, I conclude that Atlantic County was the special employer of petitioner, Walter F. Hires.  First, there was clearly an implied contract between petitioner and the County. Petitioner initially wanted to do forensic work for the County, and inquired about that possibility when he learned about the retirement of Bill Hamilton.  Although petitioner was subsequently assigned to the County by the Chief of the Atlantic City Police Department, his interest in the assignment, his willingness to accept the assignment, and the fact that he performed forensics investigative services for the Major Crimes Unit for a period of two and a half years leads to the conclusion that he had an implied contract of employment.

There can be no question but that while he was assigned to the Major Crimes Unit of Atlantic County, he was doing investigative work for the Prosecutor’s Office, working not only in Atlantic City, but in other municipalities as well.  Thus, during this period the investigative work which he was performing was essentially that of the Major Crimes Unit.  Third, as a result of his assignment, he was under the supervision and control of Sergeant DeShiels and Lieutenant Wellman.  While neither of them directed the petitioner in performing forensic investigative work, he was directed to homicide scenes by his superiors, collected evidence, lifted fingerprints and prepared reports which were a part of the Major Crimes Unit investigation.  Thus, the specific investigative work which he did in connection with a particular homicide investigation was controlled by the Major Crimes supervisors.

However, simply because the County of Atlantic was the special employer of the petitioner, that does not mean that the County is solely responsible for the payment of workers’ compensation benefits.  In Blessing v. T. Shriver and Co., Inc., 94 N.J. Super. 426 (App. Div. 1967), the court considered two other co-equal factors, namely, “whether the special employer (1) pays the lent employee’s wages and (2) has the power to hire, discharge or recall the employee.

In the instant case, Atlantic County neither paid petitioner wages nor had the power to hire, discharge or recall him.  Clearly, the City paid all of petitioner’s wages during the entire period of time that he was assigned to the County. The City also supplied his health benefits, made pension contributions, controlled his sick and vacation days, recalled him for mandatory police training, recalled him for emergent situations in the city, and had the power to recall him permanently.  Furthermore, under the collective bargaining agreement, the city retained the power to discipline and/or discharge the petitioner.  While the county could decide that the assignment was not working out and return petitioner to the City of Atlantic, the petitioner would return to the Atlantic City police department with all of the same pay and benefits which he had before his assignment.  With regard to the city’s payment of wages and benefits, unlike the lent employee cases such as Kelly v. Geriatric and Medical Services, Inc., supra., the county did not pay the city a set amount, or reimburse the city for the costs of petitioner’s wages and benefits.  The city alone bore all the costs of employment of the petitioner.

As noted by the court in Antheunisse, supra., and Murin, supra., where the three conditions outlined by Professor Larson are satisfied in relation to both employers, both employers are liable for workers’ compensation benefits.

In Domanoski, supra., the court emphasized that in dual employment situations, the most significant inquiry is the determination of “whose interest the employee was furthering at the time of the accident.”  Applying that criteria, I conclude that the interest of both the Atlantic City and Atlantic County were advanced as a result of petitioner’s assignment to the County’s Major Crimes Unit.  I also note that unlike many of the cases cited by both the city and the county in their respective briefs, petitioner was working for two public entities with a common goal of using “all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the law.”  Winne, supra.  The county Major Crimes Unit was created so that the prosecutor could conduct thorough, efficient, professional and uniform investigations of homicides throughout Atlantic County.  Local law enforcement agencies, such as the Atlantic County Police Department, are obligated by statute to cooperate in this effort.  Such cooperation assists the City in the investigation of crimes committed within its borders, and helps to develop intelligence in other areas of criminal activity related, either directly or indirectly to the homicide investigations.  Such cooperation not only enables the county to solve murder cases more quickly, but also enables the city to deal more effectively with other types of crime.  Furthermore, assigning Atlantic City police officers to the Major Crimes Unit generally gives the city the advantage of having their officers become more highly trained and more skilled in investigative techniques, so that when they return to work exclusively in Atlantic City, they are able to do a more professional job in the investigation of crimes and the apprehension of criminals.

Under these circumstances, I conclude that petitioner’s assignment to the Major Crimes Unit as a forensic investigator furthered the interest of both the county and the city.  Given the clear control which the city retained over petitioner during his assignment, I conclude that petitioner was a joint employee of both the city and the county, under the simultaneous control of both, and simultaneously performed closely related services for both employers. See Hall v. Fanticone, 322 N.J. super. 302 (App. Div. 1999). In the instant case, joint employment arose because of the joint character of the police work which both the Major Crimes Unit and Atlantic City are engaged.  Accordingly, I find that the city and county are jointly responsible for the payment of workers’ compensation benefits to the petitioner. 

I order the county to reimburse the city for one half of all temporary disability, medical benefits, permanent disability benefits and fees and costs to petitioner’s attorney which have been paid by the city to the petitioner, Walter F. Hires, including one half of the cost of permanency evaluations which were ordered by the city in the investigation of this workers’ compensation claim.  In the event that petitioner seeks further medical treatment in the future, the request for such benefits should be made to petitioner’s general employer, the City of Atlantic.  The city, however, shall be entitled to reimbursement of one half of the costs of all such additional medical treatment provided to the petitioner.  Additionally, one half of the cost of any additional permanent disability benefits to which petitioner may be entitled in the future shall also be paid by the County of Atlantic.

I will allow a stenographic fee to Jersey Shore Reporting, LLC in the amount of $650 which shall be assessed $325 against the City of Atlantic, and $325 against the County of Atlantic.

I request the Atlantic County counsel to prepare an order consistent with this decision and to submit same within ten days after receipt of this decision.

                                                                                                                                                                                                                                                            _______________________________

                                                                        Cosmo A. Giovinazzi, III
                                                                        Judge of Compensation

Date:  March 14, 2005