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Appellate Court Finds Petitioner to be a Casual Employee

By on June 1, 2012 in Key Defenses with 0 Comments

The casual employee defense remains viable in New Jersey.  It is a difficult defense to make in certain lines of employment such as trucking, real estate agents, newspaper delivery persons and cab drivers, but it remains viable in situations involving home remodeling and home additions. A good illustration is the recent case of Cruz v. Ivania Perez Alonzo, A-0444-11T4 (App. Div. May 9, 2012).

Marco Antonio Cruz was injured doing remodeling work at the home of Ivania Perez Alonzo.  He was asked to do work by Ivania Perez Alonzo’s uncle and started doing minor work around the home in 2009, consisting of unclogging a toilet, repairing a light fixture, and replacing a switch.

Cruz did not own a car and when he previously did work for Alonzo, her uncle picked him up and drove him to the home.  In time, Alonzo needed some home remodeling done and agreed to pay Cruz $100 for each day he worked. Cruz had a full-time job and could only work on weekends.  Alonzo’s mother agreed to pick up Cruz and drive him to and from Alonzo’s home for this remodeling job.

Alonzo provided Cruz with a drill, sheet rock, and plaster.  Alonzo’s husband accompanied Cruz to Home Depot to purchase doors, compound, moldings, tape and screws. Cruz worked in the basement and Alonzo and her mother would come downstairs to check his work. Cruz claimed that Alonzo’s mother was essentially supervising everything by making sure his work was done properly.

On April 23, 2010, during his third weekend of work, Cruz suffered a serious injury to several fingers while using a power saw. Cruz brought a claim for workers’ compensation and argued that he was an employee of Alonzo.  The Judge of Compensation found that he was either a casual employee or an independent contractor, thereby finding no workers’ compensation coverage. Cruz appealed to the Appellate Division.

The Court considered two prior cases involving similar work in homes, Berkeyheiser v. Woolf, 71 N.J.Super. 171 (App. Div. 1961) and Martin v. Pollard, 271 N.J.Super. 551 (App. Div.), certif. denied, 137 N.J. 307 (1994).

In both of those cases, the Court found that doing odd jobs or occasional repair work is more compatible with that of a casual employee, and casual employees are not covered for purposes of workers’ compensation.  “Under Berkeyheiser, ‘the term “casual”’ at least connotes a relationship relatively brief and passing, coming without regularity.”  The Court added, “When the petitioner’s work is not part of the respondent’s ordinary business, it is logically more likely to be casual and the statute imposes a correspondingly higher burden on the petitioner, requiring the work to have been ‘regular, periodic or recurring.’”

The Court noted that Mrs. Alonzo was not engaged in the business of construction or remodeling, and Cruz’s work was not regular, periodic or recurring. For this reason the Court affirmed the dismissal of Cruz’s claim.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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