MICHAEL SAVIO VS. MATTHEW v. GIAMBRI, SR. (DIVISION OF WORKERS' COMPENSATION) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0701-15T1
MICHAEL SAVIO,
Petitioner-Respondent,
v.
MATTHEW V. GIAMBRI, SR.,
a/k/a MATT GIAMBRI,
Respondent-Appellant.
_______________________________________
Submitted December 22, 2016 – Decided July 12, 2017
Before Judges Lihotz and O'Connor.
On appeal from the New Jersey Department of
Labor and Workforce Development, Division of
Workers' Compensation, Docket No. 2006-
20819.
Kavanagh & Kavanagh, LLC, attorneys for
appellant (Victoria S. Kavanagh, on the
brief).
Law Offices of Sal B. Daidone, and The
Blanco Law Firm, LLC, attorneys for
respondent (Sal B. Daidone, on the brief;
Pablo N. Blanco, of counsel and on the
brief).
PER CURIAM
Following a hearing, a workers' compensation judge
determined Michael Savio was an employee of Matthew V. Giambri,
Sr., at the time Savio was injured on a job site on June 1,
2006, making him eligible for benefits under the Workers'
Compensation Act (Act), N.J.S.A. 34:15-1 to -146. Giambri
appeals from the August 31, 2015 judgment memorializing the
judge's determination. After reviewing the record and
applicable legal principles, we affirm.
I
At the hearing, held nine years after the incident, only
Savio and John Carney, a co-worker present when Savio was
injured, testified. None of their testimony was refuted.1
Because Carney's testimony is immaterial to the issues on
appeal, we summarize only the relevant testimony Savio provided.
Although he initially testified he had been working for
Giambri for two weeks before the subject incident, Savio
subsequently stated and the judge found credible he had been
working for Giambri for four weeks before he was injured.
During those four weeks, Savio "pour[ed] concrete" on one and
1
We note here Giambri, who represented himself during the
hearing, cross-examined Savio and conducted a direct examination
of Carney. As revealed by the judge's written opinion and
Giambri's brief, both regarded the content of Giambri's
questions as evidence. We point out the contents of a question
are never evidence, a premise so obvious we deem it unnecessary
to provide a citation of authority for its support.
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did plumbing work on another job site. Giambri paid him $150
per day to pour concrete; otherwise, Giambri paid Savio "$125,
$100" per day. Savio testified he was paid by check or cash for
his work and was "not on the books" but, significantly, also
stated he did receive a W-2 form from Giambri's company.
On June 1, 2006, Giambri picked up Savio from his home and
drove him to a job site. On the way, Giambri informed Savio he
was taking him to a residence, where the siding was to be
removed and replaced, but Savio's task was only to rip off the
siding. When they arrived, Carney was present, as was the
homeowner. When asked if Giambri gave him any directions on
what he was to do, Savio replied Giambri "pointed everything
out" and then left.
During the hearing, Savio was asked if he had his own
tools, to which he replied in the affirmative, but there was no
evidence he used his tools at the job site. Savio also stated
he did not bring any materials to the residence, as what was
needed was "already there."
After the siding was removed, Savio began to descend from a
ladder when it suddenly broke, causing Savio to fall two-and-a-
half stories and injure his spine. Savio was disabled from
working for an unspecified period of time, and continued to
receive treatment for his injuries until 2010. He was informed
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by his physician he could never resume work in the construction
field.
The judge found Savio "extremely credible," and, after
considering the twelve factors set forth in Estate of Kotsovska,
ex rel. Kotsovska v. Liebman, 221 N.J. 568, 594 (2015), to
determine if a party is an employee of another, concluded Savio
was Giambri's employee at the time he was injured.2 We address
the judge's specific findings when we discuss the twelve
factors, below.
II
On appeal, Giambri contends there was insufficient evidence
to support a finding Savio was his employee under the twelve-
2
These twelve factors are:
(1) the employer's right to control the
means and manner of the worker's
performance; (2) the kind of occupation—
supervised or unsupervised; (3) skill; (4)
who furnishes the equipment and workplace;
(5) the length of time in which the
individual has worked; (6) the method of
payment; (7) the manner of termination of
the work relationship; (8) whether there is
annual leave; (9) whether the work is an
integral part of the business of the
"employer"; (10) whether the worker accrues
retirement benefits; (11) whether the
"employer" pays social security taxes; and
(12) the intention of the parties.
[Kotsovska, supra, 221 N.J. at 594 (quoting
Pukowski v. Caruso, 312 N.J. Super. 171,
182-83 (App. Div. 1998)).]
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factor test adopted in Kotsovska, supra, 221 N.J. at 594.
Giambri maintains Savio was merely a casual employee and, thus,
ineligible to receive benefits under the Act. See N.J.S.A.
34:15-36.
The scope of appellate review in workers' compensation
matters is well-established. That review is limited to "whether
the findings made could reasonably have been reached on
sufficient credible evidence present in the record, considering
the proofs as a whole, with due regard to the opportunity of the
one who heard the witnesses to judge of their credibility."
Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262
(2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599
(1965)).
Deference is given to the factual findings made by the
compensation judge, unless they are "manifestly unsupported by
or inconsistent with competent, relevant and reasonably credible
evidence as to offend the interests of justice." Perez v.
Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994)
(quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J.
474, 484 (1974)), certif. denied, 140 N.J. 277 (1995).
Moreover, a reviewing court must give due regard to the special
expertise of the workers' compensation judge. Sager v. O.A.
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Peterson Constr., Co., 182 N.J. 156, 164 (2004) (citing Close,
supra, 44 N.J. at 599).
Having reviewed the record in light of the principles of
law governing our review, we conclude the judge's determination
Savio was Giambri's employee was reasonably reached on
sufficient credible evidence present in the entirety of the
record. Therefore, we affirm. We review the twelve factors in
light of the evidence and the judge's findings.
The first factor to be considered is the employer's right
to control the means and manner of the worker's performance.
The judge determined a question Giambri posed to Savio included
an admission Giambri controlled how Savio was to complete his
duties. However, questions asked of a witness are not evidence.
Notwithstanding, the record reveals there was evidence to
support the conclusion Giambri controlled the means and manner
of Savio's performance.
On the day he was injured, Giambri picked up Savio from his
home and told him he was taking him to a residence, where Savio
was to remove the siding from a house. Although the ultimate
job Giambri intended to complete for the homeowner was to put on
new siding, Savio was instructed his role in the project was
limited to remove the siding. Giambri supplied all of the
materials Savio needed to complete the job. There is no
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evidence Savio used any of his own tools or materials to
complete the task assigned to him. After Giambri dropped Savio
off at the site and "pointed out" what he was to do, Giambri
left.
Although Giambri then left the site revealing, as Giambri
argues, he was not exerting any control over and thus Savio was
not his employee, there is no evidence Savio required any more
supervision or direction from Giambri to complete the task at
hand. Therefore, the fact Giambri left the workplace does not
detract from Savio's premise he was an employee.
It has long been recognized the first factor carries less
weight when the job in question does not require direction or
supervision from the hiring party. See D'Annunzio v. Prudential
Ins. Co. of Am., 192 N.J. 110, 121-22 (2007) (citing Marcus v.
E. Agric. Ass'n, 58 N.J. Super. 584, 597 (App. Div. 1959)
(Conford, J., dissenting), rev'g on dissent, 32 N.J. 460(1960)). "[W]here 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, . . . . the factor of control
becomes inconclusive." Ibid. (quoting Marcus, supra, 58 N.J.
Super. at 597).
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For the same reason, factor two, the supervision necessary
over the job under review, and factor three, the skills entailed
to perform the subject job, also have minimal significance in
this matter. As the compensation judge correctly found, Savio's
duties required little direction and only minimal skills.
Factor four requires a consideration of who furnished the
equipment and workplace. There is no question Giambri furnished
both and, contrary to Giambri's claim, there is no evidence
Savio used any of his own tools.
Factor five is the length of time the individual worked for
the alleged employer. As the judge found, there was credible,
unrefuted evidence Savio had been working for Giambri for four
weeks before he was injured.
The sixth factor is the method used to pay the alleged
employee. The judge noted Savio was paid by cash or personal
check, and the amount of his pay depended upon the kind of labor
he performed. Significantly, it is unrefuted Giambri's company
provided Savio with a W-2 form.
The seventh factor requires a consideration of the manner
in which the work relationship terminated. The judge found
there is no question the accident precluded Savio from returning
to work for Giambri, a finding supported by the evidence.
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The eighth (whether there was annual leave), tenth (whether
the worker accrued retirement benefits), and eleventh (whether
the employer paid Social Security taxes) factors are similar and
are addressed collectively. The judge found there was no
evidence addressing these factors. We note there was evidence
of the eleventh factor. Specifically, Savio testified he
received a W-2 form from Giambri's company. Although a copy of
the W-2 form was not provided, such form typically reflects
Social Security taxes have been withheld.
The ninth factor requires a determination whether the
alleged employee's work was an integral part of the alleged
employer's business. Here, the judge found Giambri was a
contractor who employed laborers to perform services on his
behalf and, thus, the work Savio performed was an integral part
of Giambri's business.
While there was no explicit testimony Giambri was a
contractor, it was implicit that he was. Savio testified
Giambri hired him to "pour concrete" at one site, do plumbing at
another, and remove siding from a house at the third and final
site. Thus, there was sufficient evidence Giambri was providing
contracting services.
The twelfth factor necessitates an examination of the
parties' intentions. Here, there is no evidence of any express
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statement made by either party characterizing their
relationship, but the evidence discussed above reveals a dynamic
between the two consistent with the existence of an employer and
employee relationship.
We are satisfied from our review of the record that,
considering the proofs as a whole, the judge's conclusion Savio
was Giambri's employee is amply supported by the record.
Accordingly, as an employee, Savio was entitled to compensation
under the Act. Because of our disposition, we need not address
Giambri's remaining argument.
Affirmed.
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