CP# 99-785 Santander v. Wills Trucking Co.
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
MIDDLESEX COUNTY DISTRICT
WILLS TRUCKING COMPANY
|DECISION OF PHILIP BOLSTEIN
JUDGE OF COMPENSATION
RAFANO & WOOD, ESQS.,
By: ROBERT RAFANO, ESQ.,
Attorney for Petitioner
BRAFF, HARRIS & SUKONECK, ESQS.,
By: JOHN NOLAN, ESQ.
Attorney for Respondent
The respondent operates a municipal waste transportation system under the authority of the State of New Jersey. It enters into agreements with tractor owners to transport the waste cargo in trailers owned by the respondent. Payment is made for each load transported.
The drivers pick up the waste at a transfer station in Parsippany, New Jersey, and deliver it to a storage facility in Pennsylvania.
The respondent utilizes many trucks and transfers an average of 40 to 50 loads per day.
The petitioner, who was aware of the respondent’s business and it’s need for drivers, purchased a tractor and entered into an agreement whereby he leased this tractor to the respondent for it’s exclusive use during the period of the lease.
The respondent obtained all of the necessary permits and obtained insurance for the tractor, but charged petitioner for the insurance.
In accordance with state regulations, the respondent provided the petitioner with the approved transportation route and petitioner was not permitted to deviate from said route.
Although petitioner was not required to work on a daily basis, he was not allowed to use the tractor for any other purpose while hauling for the respondent.
All of the permits were in the name of the respondent.
He was required to complete two runs per day. If he did more than that, he received extra compensation.
He would call the respondent in the morning and get a load number. He would show that number at the transfer station and would be shown a pre-loaded trailer, which he would hook up to his tractor. He would drive this trailer on the prescribed route to the dumpsite where the trailer would be registered and weighed. After the load was dumped, petitioner was given a certificate for that load. He then called the respondent and was given a new trailer number and he would drive back to Parsippany to pick up the new trailer and take it to Pennsylvania.
He did this six days per week.
If the tractor required maintenance or repair, the respondent did this.
On April 9, 1998, as petitioner was climbing onto the trailer to check for a diesel leak, the rung of the ladder broke and petitioner fell approximately 13 to 14 feet to the ground.
He was taken to the Hunterdon Medical Center where he received emergency treatment for a fracture of the proximal radius of the right arm. He was given a sling and told to follow up with an orthopedist.
He went to the Orthopedic Associates of Central New Jersey on April 13 where he was found to have the aforesaid fracture together with an avulsion of the coronoid process of the right elbow. He was treated by this facility on three occasions until June 29, 1998.
Dr. Christopher Morais also examined him and treated him from May 14, 1998 until July 29, 1998.
Dr. Morais also referred petitioner for MRI studies of the neck, right shoulder, right elbow, right hand, and lower back.
Petitioner was out of work from the date of the accident. Documentary evidence shows a payment to him from the American International Companies for disability from 4/20/98 to 7/12/98, with a one-week elimination period. This was apparently a privately held disability insurance policy from which petitioner received $400 per week for 12 weeks, or $4800. The transmittal document indicates a return-to-work date of 7/13/98.
The petitioner testified that he has pain in his right upper extremity, from the elbow to the wrist, when driving or turning the steering wheel of his vehicle. He has pain in that area when lifting. The pain is worse in cold weather.
He has difficulty shifting gears in his truck.
He has numbness and tingling in the same areas as the pain.
He describes the pains in these areas as "very strong. It’s in here like someone is sticking me," indicating the area of the right upper forearm on the inner side just below the elbow, and the right wrist.
Dr. Horia Schwartz who is Board Certified in Physical Medicine and Rehabilitation examined petitioner.
Dr. Schwartz testified that he examined the petitioner on November 9, 1999. He found Mr. Santander to be suffering from the residual effects of the injuries to his right shoulder, right elbow, and right wrist.
There was atrophy of the right forearm with loss of strength. There were complaints of numbness in the right fifth finger which was consistent with impingement of the ulnar nerve in the area of the right elbow with a positive Phalen sign involving the median nerve of the right wrist. There was restriction of motion of the right elbow.
Dr. Schwartz felt that all of the injuries to petitioner’s right shoulder, right elbow, and right wrist were related to the accident of April 9, 1998, and resulted in permanent disability of 17½ per cent of partial total for the shoulder, 40 per cent of the right arm for the elbow, and 50 per cent of the right hand for the right wrist.
The respondent had the petitioner examined by Dr. Richard Schenk, an orthopedic surgeon, on October 20, 1999.
In lieu of the doctor’s testimony, the respondent introduced the report of that examination into evidence.
This report shows that Dr. Schenk found some slight restriction of flexion of the right elbow with some weakness there. There were no other objective indications of disability in the neck or the wrists.
He reviewed the x-ray report of the fracture of the right radial head, and the MRI reports of a subacromial impingement with acromioclavicular arthropathy of the right shoulder, a slight separation of the scaphoid and lunate bones of the right wrist, indicating a partial tear of the scapholunate ligament, straightening of both the cervical and lumbar lordotic curves, and an unremarkable right elbow.
Dr. Schenk concluded that there was a permanent disability of 6 per cent of the right arm causally related to the accident.
This are other cases involving an owner-operator of a tractor leased to and operated in the business of a trucking company, who are injured in an accident while driving the tractor attached to a trailer owned by the trucking company in the course of the business of the trucking company.
The trucking company, in an effort to avoid the obligations and expenses of the workers’ compensation law, requires the owner-operator of the tractor to sign a lease of that tractor to the trucking company which obligates him to use the equipment exclusively in the business of the trucking company during the period of the lease.
Upon the happening of an accident in the course of operating the tractor-trailer in the furtherance of the lease, the trucking company asserts the defense that the owner-operator was an independent contractor and not an employee covered by the workers’ compensation law.
The law is so well established that one would hope that these companies would accept the obligations of the law and not compel our courts to repeatedly address this issue.
The courts have utilized two tests to determine whether a person is an employee or an independent contractor: (1) the "right to control" test and (2) the "relative nature of the work" test. Caico v. Toto Bros., Inc.. 62 N.J. 305, 309 (1973). "These two tests are basically designed to draw a distinction between those occupations which are properly characterized as separate enterprises and those which are in fact an integral part of the employer's regular business." Pollack v. Pino's Formal Wear & Tailoring, 130 N.J. 6 (1992). In recent years "[t]he courts have placed greater reliance upon the relative nature of the work test" than upon the control test. Ibid; see Kertesz v. Korsh, 296 N.J. Super. 146, 154 (App. Div. 1996); Hannigan v. Goldfarb, supra, 53 N.J. Super. at 204-06.
The "right to control" test may be satisfied even though the employer does not control the details of an employee's performance of his or her work. As Judge Conford pointed out in his dissenting opinion in Marcus v. Eastern Agric. Ass'n. Inc., 58 N.J. Super. 584, 596-605 (App. Div. 1959), which was subsequently adopted by the Supreme Court, 32 N. J. 460 (1960)1
[T]he requirement of control is sufficiently met where its extent is commensurate with that degree of supervision which is necessary and appropriate, considering the type of work to be done and the capabilities of the particular person doing it. Patently, where the type of work requires little supervision over details for its proper prosecution and the person performing it is so experienced that instructions concerning such details would be superfluous, a degree of supervision no greater than that which is held to be normally consistent with an independent contractor status might be equally consistent with an employment relationship.
[58 N.J. Super. at 597 (citations omitted).]
In applying the "relative nature of the work" test, the court must determine whether the work done by the petitioner was an integral part of the regular business of respondent. Rossnagle v. Capra., 127 N.J. Super. 507, 517 (App. Div. 1973), aff'd o.b., 64 N.J. 549 (1974), and whether petitioner had a "substantial economic dependence on respondent," Caico v. Toto Bros., Inc.. supra. 62 N.J., at 310. "[T]he determinative criteria [are] not the inconclusive details of the arrangement between the parties" but rather "whether or not the work is a part of the regular business of the employer." Marcus supra. 58 N.J. Super, at 603; Kertesz, 296 N.J. Super. at 146.
In the instant case, the petitioner is an employee under either or both of the accepted tests.
Under the "control" test, respondent directed the petitioner in every aspect of the work, including the route, which he must take without deviation. There was evidence of numerous charges of violations of company policies regarding log book entries.
Under the "relative nature of the work" test, clearly the work was an integral part of the respondent’s business. Without workers such as the petitioner, the respondent would be out of business. Petitioner was also dependent upon the respondent since the contract provided that the petitioner could not use the tractor for anyone else during the period of the contract with the respondent, even though he was not required to work on a daily basis.
Evidence has been introduced that the petitioner advised the respondent that he needed to make more money and respondent advised him that he could lease a second truck to them. He thereupon bought another truck and hired a driver to drive it and paid the driver out of the contract payments.
This does not change the legal relationship between the petitioner and the respondent with regard to the truck driven by the petitioner.
The relationship is defined by the facts of each arrangement and the petitioner could very well be an independent contractor with regard to the truck owned by him but driven by someone hired by the petitioner, and be an employee with regard to the truck owned by and driven by petitioner.
I find that the petitioner was an employee of the respondent and suffered an injury as a result of an accident that arose out of and in the course of said employment on April 10, 1998.
I find that the petitioner was paid by the load and that this constituted his wage. Based upon the testimony, I find that the petitioner’s wage was in excess of the state-determined average wage for 1998 and he is entitled to compensation rates of $516 per week for temporary compensation and statutory rates, beginning at $138 for permanent compensation.
I find that the respondent is responsible for the medical treatment received by the petitioner. Since the respondent denied the occurrence of a compensable accident, the petitioner does not have to prove authorization of the treatment, but only that the treatment was necessary and the charges were reasonable. This was established through the testimony of Dr. Schwartz.
The respondent shall pay the following bills:
Pegasus Emergency Group………………..$160
Newark Open MRI………………………...$1900
Dr. Christopher Morais…………………….$4030
Hunterdon Medical Center…………………$330.63
Orthopedic Associates of Central Jersey….$51.56
Reimburse petitioner for medication………$91.20
I find that the petitioner was temporarily disabled from April 10, 1998 to July 12, 1998 and is entitled to temporary compensation for 13 3/7 weeks, at $516 per week, amounting to $6929.14.
With regard to the permanent disability, the petitioner has testified as to the physical complaints regarding his right arm and right hand, and the effects of these complaints upon his ability to work as a truck driver.
I find the petitioner to be a credible witness in this regard. There were other areas of injury, which resulted from the accident, including the petitioner’s cervical area, his right shoulder, and his lower back. MRI examinations were done of these areas. Petitioner gave no complaints referable to these areas of the body, lending credibility to those areas of which he did complain.
Dr. Horia Schwartz testified for the petitioner. He found objective evidence of disability in the right arm and hand, including atrophy of the right forearm, loss of strength of the right hand, and sensory disturbance of the right fifth digit, following the ulnar nerve distribution, which was consistent with an injury to the nerve in the area of the right elbow resulting from post-fracture swelling in the area of the right elbow. There was also a positive Phalen sign, indicative of injury to the right median nerve in the wrist area. There was restriction of motion of the right elbow.
Dr. Schwartz felt that petitioner had a permanent disability of 40 per cent of the right arm and 50 per cent of the right hand as a result of the injuries suffered in the accident of April 10, 1998. He also estimated disability in the area of the right shoulder; however, the petitioner had no complaints referable to this area at the time of his testimony before me.
The respondent presented the report of Dr. Richard Schenk, who examined the petitioner on October 20, 1999. He estimated petitioner’s permanent disability at 6 per cent of the right arm.
A judge of compensation, of course, is not bound by the conclusionary opinions of medical experts; however, he must give consideration to such testimony and evaluate it based upon the doctor's qualifications and demeanor, the inherent trustworthiness of the testimony, and the quality of the underlying examination upon which the opinions are based. Margaritondo v. Stauffer Chemical Co., 217 N.J.Super. 560 (App.Div. 1985).
After considering the testimony of the petitioner and the medical proofs, and utilizing my expertise as a judge of compensation, I find that the petitioner has a permanent disability, orthopedic in nature, to the extent of 25 per cent of the right arm and an additional disability of 15 per cent of the right hand, orthopedic in nature, for the residuals of a fracture of the head of the right radius and right coronoid process, together with a partial tear of the right scapho-lunate ligament.
Judgment will be entered in accordance with this Decision.
November 20, 2000