State of New Jersey

DEPARTMENT OF LABOR

CHRISTINE TODD WHITMAN, Governor
MEL GELADE,  Commissioner

February 14, 2000

re: Hynes v. Charf - C.P. 99-013630 and Hynes v. Kuhlmeier - C.P. 99-013633

Messrs. Walsh, Charf, Kuhlmeier and Ms. Kotsines:

On March 1, 1999 the petitioner fell from a ladder while working at premises known as 33 Norma Place, Hazlet (the "premises") owned by Mr. Eric Charf (the "Owner"). Due to the unresolved issues

of both coverage and liability it was determined that the matter should proceed on a bifurcated basis

with testimony as to the nature and extent of alleged injury(ies) deferred until a later date.

Petitioner testified that he had been hired by Mr. Kuhlmeier to perform carpentry work as part of a building modification project then underway at the premises. The petitioner viewed Mr. Kulhmeier as a"contractor" on the job. Petitioner was injured when he fell in the course of performing roof

repairs to the "lower level" of roofing at the premises.

After reviewing and evaluating the testimony of the Owner, the petitioner and Mr. Kohlmeier, I

make the following findings of fact and law with respect to the business relationship between such parties as regards the modification work performed at the premises during the first quarter 1999.

A. The Owner spent little if any time at the premises during normal working hours and made no

apparent attempt to exert control over the work that was being performed in/at his home. Although

the testimony of petitioner and Mr. Kulhmeier is contradictory in many respects, both of those

gentlemen acknowledge that the Owner did not actively participate in either the control of the job

or the mechanics of the same beyond the selection of personnel or entities to perform the required

construction tasks. Accordingly, I find that the Owner has no liability for workers' compensation benefits claimed by petitioner for the injury(ies) he sustained on March 1, 1999 while working at the premises. In reaching this conclusion I rely on N.J.S.A. 34:15-79 as well as Emile v. Raymond et al., A-3080-91T5 (App. Div. 1993) and Cassano v. Aschoff et al., 226 N.J. Super. 110 (App. Div. 1988), each of which discuss the concept that the landowner who undertakes to alter the condition of his property through the labor of others is not a contractor within the purview of Section 79, notwithstanding the fact that he may supervise the work of those that he has hired. A contrary result will follow, however, if it can be shown that the landowner is in the "business" of constructing improvements on his properties. See Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 404 (App. Div. 1992), ff. Mittan v. O'Rourke, 115 N.J.L. 177, 179 (Sup. Ct. 1935).

B. The petitioner was recognized by both Owner and Mr. Kuhlmeier as being an accomplished

construction worker whose specialty was dry wall installation and carpentry. From the record it appears that he neither required nor received any measure of supervision or instruction in the course of his duties at the premises. Mr. Kuhlmeier acknowledges that he suggested that the Owner hire

the petitioner to perform a portion of the modifications to be undertaken at the premises.

C. The real issue in this matter is whether Mr. Kulhmeier can be found in one fashion or another

to be responsible for providing workers' compensation coverage to the petitioner, or whether as regards any interaction he may have had with the petitioner at the premises his role was that of an

advisor to or employee of the Owner. In light of the fact that his sole employment and/or construction knowledge is limited to the installation of flooring, carpets and tile, as well as the fact that his relationship with the Owner was purely social prior to his participation in the modification

of the premises, I accept as fully credible Mr. Kuhlmeier's testimony that he had no function in that

part of the modification project that related to work performed by either the petitioner, or other

workman not involved in the reflooring or the carpeting of the premises, other than to serve as an unofficial security person. In the latter capacity he testified that the Owner asked him, to the extent that his hours permitted and the Owner was absent from the premises, to keep workmen from entering portions of the premises (e.g. the second floor) that were not under renovation.

The petitioner testified that he was subject to the direction and control of Mr. Kohlmeier.

No supporting testimony or evidence was presented in support of this contention, which was denied by Mr. Kuhlmeier. Given the petitioner's admitted expertise in performing services at the premises

I find it doubtful that petitioner provided any direction or control to the petitioner beyond letting the

petitioner know when to start or finish work on a particular day when the Owner was not going to be at the premises and Mr. Kuhlmeier could not provide his "security" service for the full day.

D. Mr. Kohlmeier testified that in his view the Owner went against his advise in contracting with

the petitioner to have the latter perform repair work on the lower portion of the roof at the

premises. It is in the performance of this work that the petitioner fell and was injured. The major

portion of the roofing work performed as part of the modification project was undertaken and

completed by a roofing contractor hired by the Owner for that purpose. Mr. Kuhlmeier testified, without contradiction, that he advised the Owner to have the same firm perform the "lower roofing work" as well. Mr. Kohlmeier further testified that he overheard a conversation between the Owner and the petitioner in which the former offered the latter the additional work required as to the lower roof for additional compensation to be paid by the Owner to the petitioner. The record is bare of any additional testimony on this issue, other than that the petitioner testified that he was capable of performing roofing work, and that Mr. Kohlmeier was working with him at the time that he was injured. Mr. Kohlmeier denies the latter and testified that he performed no work with the petitioner at the premises. There is an absence of third party testimony on the matter.

Considering the nature of the work undertaken as part of the modification project, as well as

the initial reason for hiring the petitioner (interior work) I find Mr. Kohlmeier's narrative of the

manner in which the petitioner was hired for the additional work of repairing or re-roofing the

lower portion of the roof at the premises to be entirely credible. Ciuba v. Irvington Varnish & Insul. Co., 27 N.J. 127 (1958). I am left with contradictory statements on the issue of whether Mr.

Kuhlmeier was working with, or in manner interacting with, the petitioner at the time that the latter was injured. Given the nature of the work involved and the difference between the general construction experience of the respective parties it is difficult to perceive Mr. Kuhlmeier as doing

more than handing materials to the petitioner although he denies even that participation in the roofing activity.

E. I find that petitioner was a subcontractor hired initially by the Owner to perform sheet-rocking and carpentry services as part of the modification project at the premises. He came to the job by his own transportation and brought his own tools. In accordance with his testimony the modification

of the premises was simply another construction site to which he added his work skills during 1999.

In the course of such engagement he was requested by the Owner to extend his services into the

re-roofing or repair of the lower portion of the roof at the premises. He accepted such additional

duty and was injured in the course of performing same. For the reasons expressed above I find that

neither the Owner nor Mr. Kuhlmeier are liable for the workers' compensation benefits which the

petitioner claims.

I have made an extensive review of the controlling decisions in this state dealing with the interpretation given the terms "employee" and "independent contractor". In none of them do I find, based upon the record before me, rationale supporting a finding that there was a master/servant or employment relationship between the petitioner and Mr. Kohlmeier. In this regard I refer to Lesniewski v. W.B. Furze Corp. et al., 308 N.J. Super. 270 (App. Div. 1998); Kertesz v. Korsh, 296 N.J. Super 146 (App. Div. 1996); Conley v. Oliver and Co., 317 N.J. Super. 250 (App. Div. 1998); Pollack v. Pino's Formal Wear & Tailoring, supra. Specifically, I find no evidence of the right to control, the exercise of control or a substantial economic dependence with functional integration of activities as between the petitioner and Mr. Kohlmeier. Nor do I deem it appropriate to depart from the evidentiary standards of Ciuba, supra., in order to place liability on Mr. Kohlmeier and thereby afford compensation benefits to the petitioner. The fact that Section 79 excludes the Owner from such responsibility, as noted on page 2, supra., requires a finding on the facts presented to me that is admittedly contrary to the direction of the statute generally and to the interpretation favoring coverage that has been advanced by the courts, see Hannigan v. Goldfarb, 53 N.J. Super. 190 (App. Div. 1958). However, if the "hole in the dike" is to be plugged I believe, as the Appellate Division stated in Emile, supra., that such action is more properly taken by our Supreme Court, or by the legislature, rather than at the trial level. I note further on this point that the "landowner" exclusion, which clearly applies to the Owner in the case before me, was upheld by the Supreme Court as recently as 1992 in the Pollack case, supra.

Accordingly, both of the claim petitions will be dismissed; a fee of $ 75 will be paid by each of the respondents to J. Trainor, Inc. for transcription costs.

Neale F. Hooley
Judge of Compensation