This is the Court’s decision on the Notice of Motion for Medical and Temporary Benefits in the matters of Randolph Perry v. Robert Horowitz Stable 05-2948 and Randolph Perry v. New Jersey Horse Racing Compensation Board, Claim Petition 05-21819. 

PROCEDURAL HISTORY

           On January 28^th, 2005, Randolph Perry (hereinafter “Petitioner” or “Perry”) filed a claim petition against Robert Horowitz Stable (hereinafter “Stable”) for injuries he alleged arose out of and during the course of his employment on January 19^th, 2004.

          Respondent Stable filed an answer to the claim petition on March 17, 2005 admitting Petitioner was in his employ on January 19, 2004, but denying the accident arose out of and during the course of Petitioner’s employment.

          On July 22^nd, 2005, Petitioner filed a claim petition against the New Jersey Horse Racing Industry Compensation Board (hereinafter “Compensation Board”) alleging an injury on January 19, 2004 arising out of and in the course of his employment.

          On December 13, 2005, Petitioner filed a Notice of Motion for Medical and Temporary Benefits against both respondents.

          Respondent Compensation Board filed an answer to the Notice of Motion for Medical and Temporary Benefits on December 29, 2005.  The “Answer” stated that Respondent Compensation Board was without sufficient information to confirm or deny the allegation, that Respondent Compensation Board would investigate further and be guided by its experts’ reports.  To date, Respondent Compensation Board has not submitted any experts’ reports nor has Respondent Compensation Board amended its Answer to the Notice of Motion to reflect any investigative findings, even though it has had ample opportunity to investigate.

          Specifically, the Notice of Motion was first listed on January 9, 2006 and then on February 6, 2006.  Between those two listing dates the New Jersey Supreme Court rendered  the decision of Fitzgerald v. Tom  Coddington Stables, 186 N.J. 21 (2006).

          At the February 6^th 2006 listing, Respondent requested additional time to review the Fitzgerald opinion.  The case next listed on March 20, 2006.  At that time, Respondent Compensation Board had not agreed to accept the claim so that the trial began on the Notice of Motion with the taking of Petitioner’s testimony.

          Respondent Compensation Board requested another cycle, or until April 10, 2006, to determine if it would accept Petitioner’s claim.  On April 10, 2006, Respondent Compensation Board again requested additional time to investigate.  The Court granted Respondent Compensation Board until April 12, 2006 to provide a definitive Answer.

          On April 12, 2006, Respondent Compensation Board advised it was not accepting the claim because it argued Petitioner was not a “horse racing industry employee” as defined at N.J.S.A. 34:15-131.

FACTS

          Petitioner testified on March 20, 2006.  Perry made an exceedingly credible witness.  He was soft spoken, direct and maintained excellent eye contact with the court.  He never exaggerated.  The salient facts from Petitioner’s undisputed testimony are summarized below.

          On January 19^th, 2004, Petitioner arrived at Meadowlands Racetrack and sought to enter the barn where he rented six stalls.  The weather on January 19^th, 2004, was cold, wet and icy.

          Petitioner tried to open the barn door where the horses he trained were stalled.  However, unbeknownst to the Petitioner, the barn door was frozen shut. While attempting to open the frozen barn door, Petitioner slipped on ice, flipped over and sustained severe and life altering injuries.

          Petitioner has never returned to work and has never received any temporary disability or medical benefits.  Perry testified that he is licensed as a trainer by the New Jersey Board Racing Association and Trotting Association and that he is licensed as an owner.  (T. 51, L. 9, 20).

          Admitted into evidence as P-1 was the Standard Bred Racing Stall Application (hereinafter “Application”) for the racing season beginning November 14, 2003 through 2004.  Petitioner’s employment at the Meadowlands Racetrack (hereinafter “Meadowlands”) began shortly before the 2003-2004 Standard Bred Racing season.  (T. 24, L. 23).

          At the time in question, Petitioner resided at 134-A Orchard Street in Rutherford, New Jersey.  Petitioner testified that it is generally the custom in the horse racing industry for a trainer to work for more than one owner at any given time.  (T. 51, L. 25). 

          In fact, Petitioner was working as a trainer for more than one owner on the date in question. (T. 52, L. 5).  Specifically, on January 19, 2004, Petitioner testified he was employed as a trainer by the following owners:  Bruce Olephant, Ken Iulo, K.T. Sacato, Donna Perry and Robert Horowitz.

          Petitioner testified he also had a 25 percent ownership interest in two of the horses owned by Bruce Olephant, namely Built For Pleasure and Joking Man.  Had Petitioner been able to enter the barn on January 19, 2004, he testified that he would have fed, provided water to and cleaned the stables of the five horses listed on the application plus the Horowitz horse.  (T. 45, L. 22-25).

          Petitioner testified that the usual procedure, in the horse racing industry, is that a trainer working for an owner will send out a monthly statement for payment.  (T. 50, L. 9).  The monthly statement cites the daily charge, usually $50 per day, expenses and a training percentage.  (T. 50, L. 14).  The owners paid Petitioner directly.  (T. 50, L. 17).

          Petitioner testified that he did not have his own workers’ compensation policy of insurance because as a trainer he had no employees.  (T. 43, L. 18-19).  When asked, “As a part owner, didn’t you employ yourself to be a trainer?”, Petitioner replied, “Yes, but owners are not required to have workmen’s compensation because it comes out of their purses.”  (T. 43, L. 25; T. 44, L. 1,2).

          As a part owner, Petitioner believed he did not need to purchase workers’ compensation insurance because he understood that the purses from the races went to pay the workers’ compensation insurance premium.  (T. 45, L. 8).

          Petitioner also was self-employed in his capacity as a part owner of horses, in this case Built For Pleasure and Joking Man.  Petitioner testified, after looking at his 2003 tax return, that he was paid $51, 602 as a trainer.  As an owner, he also earned money which work was reflected on his tax returns as well.

ISSUE

          The issue before the Court is whether Petitioner is a “horse racing industry employee” as defined at N.J.S.A. 34:15-131 and entitled to workers’ compensation insurance benefits pursuant to N.J.S.A. 34:15-134.

          It is the Court’s decision that Petitioner is a horse racing industry employee as defined under N.J.S.A. 34:15-131 and is entitled to and is covered by the workers’ compensation insurance policy the Respondent Compensation Board is required to procure pursuant to N.J.S.A. 34:15-134.

          Respondent Compensation Board therefore is ordered to pay immediately to Petitioner temporary disability benefits beginning January 19^th, 2004 through and including August 2005 based on a gross weekly wage of $992.35.  I reached this wage by taking the $51, 602 he testified he earned as a trainer and divided it by 52 weeks.

          Respondent Compensation Board also is ordered to pay, immediately, all reasonable, necessary and related medical bills incurred by Petitioner and/or his private healthcare provider, as a result of the January 19, 2004 accident.

          As a threshold matter, this court is controlled by the fact that the New Jersey Legislature enacted The Horse Racing Compensation Act to provide “a safety net for those instances where serious injuries have been sustained for which there is no coverage.”  Fitzgerald, 186 N.J. at 26.

          The Legislature acknowledged at N.J.S.A. 34:15-130 the uniqueness of the horse racing industry.  The Legislature cited the example of a jockey who rides for more than one owner and who is injured might create confusion as to who the responsible employer is.  N.J.S.A. 34:15-130.

          The statute states specifically that it is in the “ ‘public interest’ to insure that workers’ compensation coverage is available to persons employed in the horse racing industry by collectively securing workers’ compensation insurance coverage for such persons, the cost of which shall be funded by the horse racing industry…”  Id.

          The Act defines “horse racing industry employee” to mean inter alia “a trainer who otherwise would be considered an employee of an owner pursuant to R.S. 34:15-1 et seq.”  Id.  A horse racing industry employee “shall be deemed to be in the employ of the New Jersey Horse Racing Injury Compensation Board and in the employ of all owners who are licensed or required to be licensed by the Commission at the time of any occurrence for which workers’ compensation benefits are payable pursuant to N.J.S.A. 34:15-1 and not solely in the employ of a particular owner.”  N.J.S.A. 34:15-135.

          It is undisputed that Petitioner was working as a trainer for five owners on January 19, 2004:  Bruce Olephant, Ken Iulo, K.T. Sacato, Donna Perry and Robert Horowitz.  It also is undisputed that Petitioner had no employees of his own.  Thus, Perry’s situation is identical to the jockey example stated at N.J.S.A. 34:15-130.

          Perry worked for several owners on the date in question, sustained serious injuries and was it not for the Act, there would be tremendous confusion as to which owners’ workers’ compensation insurance was primary.  However, because of the Act, there is, or should have been, no confusion.

          Respondent Compensation Board relies extensively on N.J.S.A. 34:15-134.1 to argue Perry is not covered under the Act.  That section of the statute provides “notwithstanding any provision of N.J.S.A. 34:15-129 as amended, a trainer shall carry compensation insurance covering a trainer’s employees as required by law.”

          Perry was a trainer, but had no employees.  Therefore, N.J.S.A. 34:15-134.1 does not apply to him.  The statute cannot be any plainer.  The Fitzgerald case is distinguishable from the case at bar because in Fitzgerald the injured trainer was not an employee of the owner, but rather an employee of the trainer.  Thus, N.J.S.A. 34:15-134.1 controlled.  Respondent Compensation Board refuses to acknowledge that distinction.

          Were the court to accept Respondent Compensation Board’s argument, the purpose of the Act would be defeated.  Horse owners no longer need to procure individual policies to cover employees who also work for other owners because such a scenario would be duplicative, costly and confusing.

          The rationale in the Fitzgerald case is that only employees of owners should be covered because it is the deduction from the purses paid to the owners from the races that fund the workers’ compensation provided by the Act.  Fitzgerald states that horse trainers employed by a trainer/employer must be covered by private workers’ compensation coverage purchased by the trainer/employer.  Here, Perry was employed as a trainer by an owner, not by a trainer/employer.

          The stall application confirms Perry’s testimony that he held a percentage share of two horses that he worked for other horse owners as a trainer.  Thus, a portion of the purses that Perry worked to win, not only for himself as an owner but for his employer owners went to fund the workers’ compensation coverage afforded by the Act.

          Perry understood as much because he testified that since he had no employees he did not have to purchase workers’ compensation insurance that the cost of the insurance came out of the purses.

          Contrary to Respondent Compensation Board’s argument, the fact that a portion of Petitioner’s workday was spent working for himself as an owner does not change his status as a trainer/employee.  The Act simply does not support Respondent Compensation Board’s argument that because Petitioner worked for more than one owner as a trainer that he is disqualified from coverage as a horse racing industry employee.  Respondent Compensation Board’s argument lacks any foundation in the Act, the legislative history or in the Fitzgerald decision.

          Perry, therefore, is entitled to workers’ compensation coverage under the Act, and said coverage is primary.

          The claim petition against Robert Horowitz Stable is dismissed because as the statute provides, coverage under the Act is primary.

          Petitioner’s counsel shall immediately prepare the necessary orders for my signature.

                                                           Diana Ferriero, J.C.