DATE:  FEBRUARY 24, 2005

PLACE:  TRENTON, NEW JERSEY

B E F O R E:                   THE HONORABLE BARBARA VAN HORN COLSEY
                                       JUDGE OF COMPENSATION

A P P E A R A N C E S:

                                    PELLETTIERI, RABSTEIN & ALTMAN, ESQS.

                                    BY:  GARY E. ADAMS, ESQ.

                                    ON BEHALF OF THE PETITIONER

                                    HOWARD W. CRUSEY, ESQ.

                                    BY:  ANN DEBELLIS, ESQ.

                                    ON BEHALF OF THE RESPONDENT

The sole issue before the court at this time is that of the existence of an employment status between the petitioner, Angeline Olessi and the respondent, Anthony Colavita on September 11, 2000 when the petitioner tripped and fell on respondent’s premises.

The definition of employment under our statute is found in N.J.S.A. 34:15-36, which provides:

“… employee ‘employee’ is synonymous with servant, and includes all natural persons who perform service for another for financial consideration, exclusive of casual employment, which shall be defined, if in connection with the employer’s business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring. …”

Thus, a person is an employee if he or she provides a service for another in exchange for payment.

Excluded from the definition of employee are, “casual employees”.  The statute has separate definitions of casual employees for those in connection with the employer’s business and those not in connection with the employer’s business. 

In that petitioner’s employment with respondent in this case is not connected to respondent’s business, the second definition of casual employment applies here.  That definition provides that petitioner must establish that she provided services in exchange for financial consideration on a “regular, periodic or recurring basis”. 

It is argued on behalf of Mrs. Olessi that she provided domestic services on a regular, ongoing basis for financial consideration from Anthony Colavita.  Copies of weekly checks in the same amount covering the period from January 2, 1999 to September 11, 2000 were entered into evidence.  Testimony was given by various witnesses on behalf of the petitioner and the respondent that Mrs. Olessi was seen performing a variety of domestic tasks over the years at the home now occupied by Anthony Colavita.  There was testimony that “she was always at the house”.  Clearly, she would not fall within the casual employee exception to the definition of employment in the statute.  However, while those facts standing alone might be indicative of an employer-employee relationship, they are not the sum total of facts in this matter.

In Hannigan v. Goldfarb, 53 N.J. Super.190, 196 (App. Div. 1958) the court stated that employment status “must be determined not upon that arrangement alone (the definition of employment set forth in N.J.S.A. 34:15-36), but upon the totality of facts surrounding the relationship.

As background in this matter it is important to know that Mrs. Olessi (nee Colavita) is Anthony R. Colavita’s paternal aunt and that he has lived in the 60 Manitee Avenue home in which he currently resides since he was born, or 53 years ago at the time he testified.  When he was a child the home was lived in by his grandparents (Mrs. Olessi’s mother and father) respondent’s mother and father (respondent’s father being Mrs. Olessi’s brother) and respondent’s two brothers.  According to the petitioner’s son, Frederick Olessi, the petitioner had been born in the Manitee house.

Pasquale Colavita, Jr., brother to the respondent, stated that “the petitioner never relinquished the fact that it was her mother’s house and father’s house.  So she always referred to the house we live in (60 Manitee Avenue) as her house.”

The petitioner was married and had lived with her husband in a separate home, last residing at 95 Eldridge Avenue for about twenty years up until September, 2000.  That home was in walking distance of 60 Manitee Avenue.  The petitioner’s husband died in 1999.  Her son, Frederick, was married and not living with his parents.  It appears that the petitioner was the sole member of the Eldridge Avenue household after her husband’s death in 1999. 

According to her son, Frederick, the petitioner felt free to go to that 60 Manitee Avenue home at any time.

In determining whether an individual is an employee within the meaning of N.J.S.A. 34:15-36 the courts have developed two tests:  1[the control test], and 2[the relative nature of – the – work test].  In the first test, the determinative factor as to whether a person is an employee for the purposes of workers’ compensation is control:  the relationship of master and servant exist whenever the employer retains the right to determine not only what shall be done but how it shall be done.  Condon v. Smith, 37 N.J. Super. 320, 325 (App. Div. 1955), aff’d 20 N.J. 557 (1956).  The court in Pollack v. Pino’s Formal Wear and Tailoring, 253 N.J. Super. at 408 explained that the “actual exercise of control not as determinative as the right of control itself.”  This is due to the possible expert skill level of an employee surpassing the expertise of the employer.  A myriad of other secondary elements have been considered in evaluating whether a right of control exists in the employer.

In the relative nature of the work test the court focuses upon the alleged employer-employee relationship to determine whether the work performed by the petitioner was an integral part of the regular business of the respondent.  The court will find an employer-employee relationship under the relative nature-of-the-work test where a petitioner demonstrates substantial economic dependence upon the alleged employer and a functional integration of their respective activities.  Pollack v. Pino’s Formal Wear and Tailoring, supra, Caicco v. Toto Brothers, Inc. 62 N.J. 305 (1973); Rossnagle v. Capra and Shell Oil Company, 127 N.J. Super. 507 (App. Div. 1973), aff’d o.b., 64 N.J. 549 (1974).

Of interest is the opinion in Tofani v. LoBiondo Brothers Motor Express, 83 N.J. Super. 480, (1964) wherein the court, quoting directly from Professor Larson’s treatise on Workers’ Compensation, set forth a list of considerations for determining the existence of an employer-employee relationship.  One of the factors cited is whether or not the parties believe that they are creating the relationship of master and servant.

In Grant v. Blazer Coordinating Council of Youth Development, 111 N.J. Super. 125, the Superior Court stated that payment of wages may be one of the elements of proof in determining whether an employee-employer relationship exists at a particular moment for the purpose of workers’ compensation but it is not a controlling factor.

In the present matter, the burden of proof is on the petitioner to establish by a preponderance of the credible evidence that she was an employee of the respondent, Anthony Colavita, on September 11, 2000.  Mrs. Olessi was almost 90 years old at the time of the accident in question.  She testified briefly on her own behalf.  However she did not testify that she was employed by anyone including, Anthony R. Colavita on September 11, 2000.  When asked to describe where she was when she injured her neck and what she was doing, Mrs. Olessi testified that she was “at the Colavita’s house.  It’s the Colavita’s house… I used to go there and help him once in a while”.  In a taped message that Mrs. Olessi left on the respondent’s answering machine, Mrs. Olessi urged her nephew, the respondent, to “tear up the legal papers.”  She continued “listen, I came down there, I sat down, I-nobody told me to work.  I’ll help you out.  Nobody told me to work…between you and me, I wouldn’t even fill it out.  I wouldn’t fill it out.  I could care less.  If they say anything, say I never got nothing, that’s all.”  The language on the tape certainly indicates that the petitioner was not the motivating force behind the filing of the claim petition in this matter alleging employment. 

Frederick Olessi, the son of the petitioner testified that Mrs. Olessi worked for many years for Lenox China and as a babysitter until the 1960’s when she was asked by her brother, Dr. Jim Colavita, to give up her employment at a local bakery and take care of their father and mother.  Although he testified that Dr. Colavita had offered to pay petitioner the same salary she was earning at the bakery, we do not know his source of information for that testimony.  He testified that his maternal grandparents died in 1971.  He stated that his mother continued to go to 60 Manitee Avenue while his paternal aunt, Josephine (the petitioner’s sister-in-law and the respondent’s mother) worked.  The petitioner performed tasks such as laundry, washing dishes, preparation of meals on occasion, making beds and ironing clothes.  He further testified that his mother and the respondent’s mother “were like sisters” and that this relationship continued until the death of respondent’s mother in 1999.  Mr. Olessi indicated that the only knowledge he had of what money his mother received, if any, from respondent’s mother was “only what she told me, occasionally give her $20, $50, $5, $10.  I mean I would hear that occasionally.”  Mr. Olessi considered the money that her sister-in-law gave Mrs. Olessi not a gift but “income for services provided”, despite the fact that his knowledge is only of sporadic, differing amounts of money.  He was aware of what money Anthony Colavita gave his mother by virtue of checks which were issued because Mr. Olessi had to counter sign the checks to facilitate his mother’s cashing of them.

Mr. Olessi testified about a tax form that he purportedly prepared identifying the money given to his mother by Mr. Colavita and describing it as income.  However, the copy presented in court was an unsigned copy.  Mr. Olessi pointed to a line entitled other income and indicated that was his estimate of money that the petitioner had received from the respondent.  However, there was nothing to indicate the source of the ‘other income’ on the document.  Interestingly, the unsigned copy indicated the petitioner’s occupation as being ‘retired’. 

In the course of his testimony, Mr. Olessi acknowledged that the petitioner considered the Manitee Avenue home to be her childhood home and felt free to visit there anytime she wished.  He admitted that friends and relatives came to visit her at the respondent’s home and have coffee with her every morning.  Mrs. Olessi occasionally entertained people from church, offering her guests refreshments from Mr. Colavita’s home.  Mr. Olessi admitted that she did her own laundry at Mr. Colavita’s home and that Mr. Colavita took his mother shopping and provided his mother meals.  Mr. Olessi stated that “his mother had no independent access to cash other than ‘through his intervention’.”  Mrs. Olessi did not have her own checking account.  Petitioner’s son testified that while his father was alive the petitioner and her husband had an account at Merrill Lynch, but that after the petitioner’s husband died the account “reverted to her” and that Mr. Olessi was a part of that account also.

Additionally, Mr. Olessi testified that his mother’s medical bills for the injuries related to the September 11, 2000 accident were paid by either insurance or from Mrs. Olessi’s own income.  She had both Medicare and Blue Cross/Blue Shield and was continuing to receive monthly benefits as well as benefits from her deceased husband’s pension which monthly benefits totaled approximately $1,300.  According to Mr. Olessi at the time of his father’s death his mother had “about $200,000 in the bank and also had money saved in a brown paper bag which I found later, all of her social security payments had been in little envelopes, about $40,000.”  Mr. Olessi estimated the value of petitioner’s Eldridge Avenue home at approximately $200,000.  He commented that “she was hardly destitute”. 

Anthony J. Colavita, a nephew of the petitioner and Donaline Colavita, his wife, testified. They had lived across the street from the 60 Manitee Avenue home for approximately 35 years.  After they sold their house, Mrs. Donaline Colavita testified that she returned to that house almost on a daily basis to do babysitting, since the home had been purchased by their son.  Both of these witnesses testified that they saw the petitioner actively engaged in housekeeping activities at 60 Manitee Avenue.  They described her as “all the time doing stuff”, she never sat down.  She gave you a cup of coffee and have a cup, taking it before you were finished, because she was always doing something… she don’t sit still long enough…to watch TV, knit or crochet … during the course of family functions, the petitioner would be doing dishes all the time”.  He testified that the 60 Manitee Avenue home “was like an old homestead to us, everybody just walked in and that was it, everybody felt like we were all at home.”  He indicated that at such times Mrs. Olessi would sit down once in a while to have a cup of coffee.  He testified that the only thing he knew was that Mrs. Olessi was always doing something at the 60 Manitee Avenue home, whether it was cleaning or washing or doing something.  He knew nothing about any financial arrangements, if any.

The respondent, Anthony R. Colavita testified as to the “Italian tradition” in his family.  He stated that during his entire life his aunt Angelina (Mrs. Olessi) visited the 60 Manitee Avenue home.  Even after his father had passed away his aunt was visiting “my mother and me, whoever was there.  Because the house was a place for our family to meet.  So cousins would come over and my uncle, my aunt were still alive, so they would come and still visit.  It was a place for everyone to still get together and meet.”  While his mother was still alive his aunt would visit daily.  Mr. Colavita testified that after her own husband passed away, and she “didn’t have to go home to cook him a meal”, the petitioner “would stay and have dinner then one of us or my brother or sister-in-law or someone would make sure she got home safely.”  Mr. Colavita described the petitioner as a companion to his mother, that she would “sit and watch TV or read the paper, have a cup of coffee or whatever.”  He explained that after her husband passed away the petitioner continued to visit his home because “she had no place else to go, that she needed some place to go and that, you know she was used to coming down to the house, it would kill her if she couldn’t come down any more … I saw this woman as someone who needed help or a place to go and so I allowed her to continue to stay.  My aunt was not the type of person you can say no to”.

Mr. Colavita described himself in relation to his aunt as a person who could not say no to his aunt because “I’m not that type of person.  Just, you know, the woman needed a place to go…she wanted to be out of the house.  She always came down to our house, that’s how it was.”  He went on to say “you know, we were sort of filling the gap of losing her husband and any place else to go”. 

He explained that the petitioner “told me once that all her money was tied up in Merrill Lynch, that she had no access to money and that she would take whatever, any gift I wanted to give her.  So I would give her money because I thought that would be another way of helping her, in addition to cooking her dinner and taking her places”.  The respondent recalled that petitioner’s access to her funds in Merrill Lynch which she had previously shared with her husband, was limited.  Mr. Colavita testified, consistent with Frederick Olessi, that the petitioner used to bring her own wash to his home and acknowledged that she would iron or wash his clothes, or dust, “whatever she wanted.  If she wanted to cook something, she would cook. I let her basically have the house.  Whatever she wanted to do, there was nothing, I never said I want her to do this, this or this, or you can’t do that.  She just came down and did what she wanted”.  Mr. Colavita testified that he never expected the petitioner to be in his home every day, however, “she was there early, I mean sometimes she might be there at 6 o’clock in the morning.  I’m not out of bed a couple of times when she was at the door.  I let her in.”

Mr. Colavita did not know what his aunt was doing with dishes when she was injured:  “I have no idea.  She came and did whatever she wanted.  If she wanted to wash dishes, she would do it.”

With regard to the money Mr. Colavita gave his aunt, he testified that although he initially gave her cash at some point he started to give her checks.  He testified that he considered these checks to be gifts.  Other gifts he gave her included food, flowers.  He testified that he stopped giving his aunt $55 per week after the injury because “she was then living with her son, she didn’t need any more of my [money].”

The respondent testified that his aunt could be in his home as many as seven days a week, that there was “no schedule as I didn’t keep a log when she was there.  She was just there.” 

Maryann Colavita, sister-in-law of respondent testified that “Aunt Angie is a very strong minded person and she gets what she wants”.  This witness also confirmed that the petitioner would entertain guests at the respondent’s home.  She also testified that “abusta” is an Italian word, which means a gift, an envelope that people give to each other.  She testified that she and her husband were in the habit of giving “abusta or money to the petitioner several times per month.”  After the workers’ compensation claim was filed, Maryann Colavita stated that she had conversations with petitioner “on several occasions” when the petitioner was called to say that she was very upset that this was going to happen.  She would say, according to Maryann Colavita, “Maryann I never worked for (the respondent) he never asks me to work.  I came down there because this was my life.  That’s what she told me.”

Similar to her mother’s (Maryann Colavita) testimony, Courtney Colavita testified to the Italian custom of “abusta” and described it as a “very common occurrence that always took place in the family.”  She testified that the petitioner would often visit with Courtney Colavita and give “abusta” to her but she “kind of snuck (it) into my hand”.  Miss Colavita indicated that the petitioner said don’t say anything, don’t tell anyone.  Miss Colavita indicated that she did not think that the petitioner liked the idea of others knowing about the exchange of money.  Similarly to the testimony of other witnesses, Miss Colavita stated that “Aunt Angeline did what Aunt Angeline wanted to do. 

Pasquale Colavita, Jr., the respondent’s brother testified.  He stated that the petitioner, in response to inquiries as to why she was constantly doing laundry, stated “I need to keep busy.  I just want to be busy.”  He commented that we “had to tolerate Aunt Angeline.  She had a lot of nervous energy.”

With regard to money, Pasquale Colavita testified that to his knowledge the petitioner had little or no access to her money.  He indicated that “I would give her money and she made it known around the holidays how much she expected from us.  My aunt expected it, but there was caution given to me that this is our secret.  She’d say something like, “you don’t tell Freddie about this and you don’t tell my brother about this.  This is our secret.” 

He indicated that he’d never observed his brother giving the petitioner money nor did he discuss it with the petitioner.  Although he himself gave the petitioner money several time a month, anywhere from $5 to $50, he stated “I actually had no knowledge that my brother was even giving my aunt money because we were warned that this is our secret, so I respect that... .”

Throughout the testimony of all the witnesses, it is acknowledged that the petitioner spent an overwhelming portion of her time for the last thirty to forty years at 60 Manitee Avenue.  While the respondent does not dispute that the petitioner may have been engaged in the care of her parents, who died in 1971, it defies logic to attribute to the respondent an alleged employment relationship stretching back 40 years.  While the petitioner’s son testified that his mother was so employed by her parents as a nurse, he acknowledged that they died in 1971.  He testified that his mother performed house chores for Josephine Colavita until her death in 1999, but did not give any evidence either by way of testimony or otherwise that the petitioner was an “employee” of respondent’s mother, Josephine Colavita.  The claim is further weakened in that there is no evidence of any agreement, formal or informal, implied or tacitly accepted, that the petitioner agreed to continue employment allegedly started 40 years earlier when taking care of her own parents.  The respondent, Anthony R. Colavita, was not in need of nursing care such as Mrs. Olessi’s parents needed in the 1960’s.  Moreover, all of the witnesses’ testimony is consistent in that Angeline Olessi is a woman who could not sit still, had a nervous energy about her, and did what she wanted to do.  She considered the respondent’s home to be her home, she entertained her own guests at will in the home; she appeared at all days and times at her choosing and considered herself fully a part of the family life.  There is no testimony by any witness that the respondent in 2000 was in any way controlling the petitioner’s activities in his home.  Just the opposite, Mr. Colavita testified that he could not say no to his paternal aunt who was almost 90 years old at the time.  By all accounts, his aunt followed her own dictates.  The petitioner has not met the legal requirements of the “control test under the NJ Workers’ Compensation Statute in establishing an employment relationship between petitioner and respondent.”

With regard to the relative nature of the work test it is undisputed that the activities performed in the Colavita home by the petitioner were not in furtherance of any business suggested by the respondent, who is a school teacher.  Even when one considers economic dependence of the worker upon the business “it can scarcely be said that the petitioner have any dependence on the small amount of money she received from the respondent.  Even given Fred Olessi’s conservative estimate that his mother spent 30 hours per week in the home, she received less than $2 remuneration per hour.  It is quite likely that the petitioner spend well in access of 30 hours per week at the 60 Manitee Avenue home since she would arrive between 6 and 8 a.m. and leave between 3 and 10 p.m. almost daily.  Furthermore,  at the time of this incident the petitioner’s assets were in excess of $440,000, not including $1,300 per month, an income from social security and pension benefits, plus any other “abusta” received from various family members.  The petitioner has failed to demonstrate “substantial economic dependence” upon the respondent as an employer. 

The petitioner’s persistence in appearing and doing light household tasks in a home which she considered as much to be her home as the respondent’s home, cannot unilaterally impose an employer-employee relationship upon the respondent.  There is no evidence that the respondent’s requested petitioner to perform any household duties.  The only realistic control that the respondent could have exercised was to bar the door at 60 Manitee Avenue to his aunt, an unthinkable action in view of the family relationship and in view of his appreciation of the petitioner’s desire to maintain a connection with what she considered to be “her home” and the constant ebb and flow of family members.

When a woman considers a dwelling to be her family home, receiving friends there and knowing that other family members will assemble for weekly dinners and also be constantly in and out, it should come as no surprise that she would engage in unbidden tidying up.

The petitioner did not testify that she considered herself to be an employee of the respondent and there was no testimony that she held herself out to anyone as working for the respondent.  She did appear to testify in this matter and could have asserted then that she considered herself to be working for the respondent and had entered into an agreement for payment for her services, if that were so, but she did not.

I find that the petitioner has failed to establish the existence of an employer-employee relationship by a preponderance of the evidence and this claim petition be dismissed

                                                                        __________________________________

                                                                        Barbara Van Horn Colsey
                                                                        Judge of Compensation

Date: February 24, 2005