YURIEL MONDRAGON CALIX VS. A2Z UNIVERSAL LANDSCAPING, Â(DIVISION OF WORKERS' COMPENSATION) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3978-15T2
YURIEL MONDRAGON CALIX,
Petitioner-Respondent,
v.
A2Z UNIVERSAL LANDSCAPING and
UTICA NATIONAL INSURANCE GROUP,
Respondents-Appellants,
and
ROBERT WOOD JOHNSON UNIVERSITY
HOSPITAL,
Intervenor-Respondent.
_______________________________________
Submitted August 30, 2017 – Decided September 7, 2017
Before Judges Rothstadt and Vernoia.
On appeal from the Department of Labor and
Workforce Development, Division of Workers'
Compensation, Docket No. 14-30560.
Braff, Harris & Sukoneck, attorneys for
appellant A2Z Universal Landscaping (Glenn A.
Savarese, of counsel; Nicholas J. Grau, on the
brief).
Lois Law Firm, LLC, attorneys for appellant
Utica National Insurance Group (Gregory Lois,
on the brief).
Ginarte, O'Dwyer, Gonzalez, Gallardo &
Winograd, LLP, attorneys for respondent Yuriel
Mondragon Calix (Christopher Iavarone, on the
brief).
PER CURIAM
Appellant A2Z Universal, LLC, (A2Z) appeals a Division of
Workers' Compensation May 12, 2016 order awarding temporary
disability benefits to petitioner Yuriel Mondragon Calix. A2Z
claims the order was entered in error because there was
insufficient evidence supporting the Division's determination that
A2Z was Calix's employer. We agree and reverse the Division's
order.
Calix was injured on June 3, 2014 in a workplace accident.
He was hospitalized, spent two months in a rehabilitation center,
required ongoing medical treatment, and was unable to work.
Calix filed a workers' compensation petition alleging he was
employed by RNR Technologies, Inc. (RNR) at the time of the
accident. RNR is not insured and did not respond to the petition.
Calix filed a second petition alleging he was employed by A2Z,
which was insured by Utica National Insurance Group (Utica) at the
time of the accident. Utica initially paid Calex benefits, but
then ceased doing so. In its answer to the petition, A2Z denied
Calix was its employee.
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In March 2015, Calix filed a motion against RNR for medical
and temporary benefits. In support of the motion, Calix submitted
a certification of counsel stating Calix commenced his employment
with RNR in February 2014, he worked for RNR at 3200 Bordentown
Avenue in Parlin, and he was injured at the location while working
for RNR on June 3, 2014. RNR did not respond to the motion.
In April 2015, Calix filed a separate motion for medical and
temporary benefits against A2Z. The motion was supported by a
certification, but it did not assert any facts showing Calix was
employed by A2Z. In its response to the motion, A2Z again denied
Calix was its employee.
In August 2015, Utica filed a motion to dismiss the petition
against its insured A2Z. Utica asserted that dismissal was
warranted because Calix was not employed by A2Z and, instead, was
employed by RNR.
The worker's compensation judge conducted a hearing on
Calix's motion seeking medical and temporary benefits from A2Z.
Calix was the only witness. He testified he began working at 3200
Bordentown Avenue in Parlin1 a few months prior to the accident,
was paid cash, and never received any documentation identifying
1
As noted, counsel's certification in support of Calix's motion
for medical and temporary benefits against RNR identified 3200
Bordentown Avenue as the location of RNR's business.
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his employer. During his employment, he never worked at a
different location. Calix could not identify his employer, and
instead explained he was hired by Roger West and an individual
named Steve and that they were his "boss[es]". Calix did not know
anything about A2Z, did not recall ever hearing A2Z's name, and
never saw any signs bearing A2Z's name at his work site.
After hearing Calix's testimony, the workers' compensation
judge directed that A2Z pay Calix temporary benefits retroactively
to the date of the accident. The court found Calix was hired by
"Steve or Roger West," they paid Calix in cash, they did not comply
with the legal requirements to make payroll deductions, and it was
not Calix's fault his "employer" failed to comply with its
responsibilities. The judge stated that Calix was "working for
someone," whether it be "[t]he West's" or "somebody else behind
the scenes," but that "it seems that there was some entity running
the place." The judge found Calix had been without temporary
benefits, did not have any money, and was entitled to benefits.
The judge awarded temporary benefits and determined that "[a]t the
end of the proceeding we can ascertain who's going to be
responsible." The judge entered an order, and A2Z appealed.2
2
An award of temporary disability benefits is a final judgment
appealable as of right. Della Rosa v. Van-Rad Contracting Co., 267
N.J. Super. 290, 294 (App. Div. 1993); Hodgdon v. Project
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"Appellate review of workers' compensation cases is 'limited
to whether the findings made could have been reached on sufficient
credible evidence present in the record . . . with due regard also
to the agency's expertise.'" Hersh v. County of Morris, 217 N.J.
236, 242 (2014) (quoting Sager v. O.A. Peterson Constr., Co., 182
N.J. 156, 164 (2004)). Deference is given to the factual findings
of a judge of compensation who has the opportunity to assess the
witnesses' credibility from hearing and observing their testimony.
Lindquist v. Jersey City Fire Dep't., 175 N.J. 244, 262 (2003).
Those findings should not be reversed unless they are "manifestly
unsupported by or inconsistent with competent relevant and
reasonably credible evidence as to offend the interests of
justice." Ibid. (quoting Perez v. Monmouth Cable Vision, 278 N.J.
Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277
(1995)). Yet, the judge's "interpretation of the law and the
legal consequences that flow from established facts are not
entitled to any special deference." Manalapan Realty v. Manalapan
Twp. Comm., 140 N.J. 366, 378 (1995).
A2Z and Utica argue the obligation to pay disability benefits
can only be imposed upon an employer, and the court erred by
Packaging, Inc., 214 N.J. Super. 352, 360 (App. Div. 1986), certif.
denied, 107 N.J. 109 (1987).
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awarding temporary disability benefits because there was no
evidence showing that A2Z was Calix's employer.3 In pertinent
part, N.J.S.A. 34:15-15 permits an award of temporary disability
benefits where, as here, an employer or its insurance carrier
refuses to provide such benefits. The workers' compensation judge
awarded Calix benefits under N.J.A.C. 12:235-3.2(h), which
provides that where it appears on a motion for temporary benefits
"the only issue involved is which carrier or employer is liable
to [the] petitioner for the benefits sought," the judge may order
one carrier or employer to pay benefits pending the final
resolution of the issue.
Under the plain language of N.J.S.A. 34:15-15, the obligation
to pay temporary disability payments falls only upon the
petitioner's employer. Cortes v. Interboro Mut. Indem. Ins. Co.,
232 N.J. Super. 519, 521 (App. Div. 1988), aff'd, 115 N.J. 190
(1989). N.J.A.C. 12:235-3.2 is part of the regulatory framework
implementing the award of benefits under N.J.S.A. 34:15-15. See
N.J.A.C. 12:235-3.2. It allows temporary benefits where "the only
issue involved is which carrier or employer is liable for the
3
A2Z and Utica make an alternative argument that the judge erred
by awarding the benefits without affording them the opportunity
to call witnesses. It is unnecessary to address this contention
because we conclude the evidence did not support the judge's
determination that A2Z was Calix's employer.
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benefits sought," N.J.A.C. 12:235-3.2(h), which presupposes that
a respondent ordered to pay temporary benefits is the petitioner's
employer in the first instance.
Here, the judge held a hearing on Calix's motion for temporary
benefits under N.J.S.A. 34:15-15 and N.J.A.C. 12:235-3.2(h). The
judge was therefore required to determine if A2Z was Calix's
employer.4 But the record before the judge was bereft of any
evidence A2Z employed Calix. Instead, Calix testified he had no
knowledge of the identity of his employer beyond having been hired
by "Steve and Roger West," and he had no knowledge that A2Z was
his employer. Nevertheless, and although the judge did not make
an express finding Calix was employed by A2Z, he ordered A2Z to
pay temporary disability benefits to Calix. There is no evidence
supporting the judge's implicit finding A2Z was Calix's employer
and therefore no basis upon which the judge could properly award
temporary benefits under N.J.S.A. 34:15-15.
4
N.J.A.C. 12:235-3.2(f) provides that under certain circumstances
a prima facie case of entitlement to an award of temporary
disability payments may be established by "[a]ffidavits,
certifications and medical reports," but there were no affidavits
or certifications establishing A2Z was Calix's employer. See Hogan
v. Garden State Sausage Co., 223 N.J. Super. 364, 366-67 (App.
Div. 1998). The only evidence presented was Calix's testimony
which, for the reasons noted, did not support the judge's
determination A2Z employed Calix when the accident occurred.
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Because we conclude there was no evidence supporting the
court's order, it is unnecessary to address A2Z's contention that
it was deprived of an opportunity to present witnesses and other
evidence at the hearing.
Reversed.
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