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Superior Court of New Jersey, Appellate Division.

RODNEY FARNATH, Petitioner–Appellant, v. 34 THSTREET MARKET, LLC, Respondent–Respondent.

DOCKET NO. A–1317–12T1

    Decided: March 28, 2014

Before Judges Sapp–Peterson and Lihotz.Kickbusch Wallach, P.C., attorneys for appellant (John P. Kickbusch, on the brief). Brown & Connery, LLP, attorneys for respondent (Gina M. Roswell and Carl J. Gregorio, on the brief).

Plaintiff sustained injuries when he fell from a ladder at his place of business, defendant 34th Street Market, LLC (LLC) which plaintiff owns.   He submitted two claim petitions with the Division of Workers' Compensation against the LLC, seeking medical and temporary disability benefits resulting from his injuries.   Farm Family Casualty Insurance Company (Farm Family), which provided workers' compensation insurance coverage to the LLC, filed a motion to dismiss Farnath's claims on the basis that the policy issued to the LLC did not provide coverage for Farnath.   The judge of compensation agreed with Farm Family and dismissed Farnath's claim petitions.   The present appeal ensued.

On appeal Farnath contends:  (1) the Legislature requires liberal construction of the Workers' Compensation Act (Act), N.J.S.A. 34:15–1  to –128, with the goal to cover as many employees as possible;  (2) as a member of the LLC, he meets the definition of “employee” and, therefore, must be covered under the LLC policy issued to “benefit all of the employees of the LLC;” and (3) he qualifies as an employee under the Act. We agree the Act as “a salutary remedial enactment, ․ is entitled to liberal construction in order to comport with its presumptive beneficence[,]” namely, to provide benefits to as many workers as possible.  Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 235 (2003) (citations omitted).   We conclude, however, the Act's “beneficence” is not intended to cover Farnath.   We therefore affirm the dismissal of his claims, substantially for the reasons expressed by Judge Arthur J. Marchand in his oral opinion.   We add the following brief comments.

There is no dispute that at the time Farnath sustained injuries, he was the sole member of the LLC and had not elected to purchase workers' compensation insurance to cover himself in his capacity as a member of the LLC. Therefore, disposition of this appeal does not require that we defer to any credibility determinations made by the judge of compensation.   Rather, the sole issue in this appeal is whether Farnath is an employee for purposes of receiving benefits under the Act. Thus, our review of the legal issue implicated is de novo for which no special deference is owed to the legal determination reached by the judge of compensation.  Sroczynski v. Milek, 197 N.J. 36, 56 (2008) (noting because the facts were not disputed and the questions presented were “purely legal in nature, no deference [was] owed to the reasoning or conclusions of the Judge of Compensation”).

Under the Act, the term “employee” is given a broad definition and includes “all natural persons ․ who perform service for an employer for financial consideration.”  N.J.S.A. 34:15–36.   The term “employee” is to be liberally construed so as to bring as many persons as possible within the coverage of the Act. Hannigan v. Goldfarb, 53 N.J.Super. 190, 195 (App.Div.1958).   Notwithstanding its remedial purposes, however, a condition precedent to recovering benefits under the Act is a finding of an employer-employee relationship.  Aetna Ins. Co. v. Trans Am. Trucking Serv., Inc., 261 N.J.Super. 316, 326 (1993).

N.J.S.A. 34:15–36 provides in pertinent part:

A self-employed person, partners of a limited liability partnership, members of a limited liability company or partners of a partnership who actively perform services ․ shall be deemed an “employee” of the business ․ for purposes of receipt of benefits and payment of premiums ․ if the business ․ elects ․ to obtain coverage for the person, the limited liability partners, the limited liability company members or the partners.

It is clear from this language, the Act distinguishes between an employee and one who is a member of a limited liability company by permitting the latter to obtain workers' compensation coverage if he or she “elects” to do so.  “Where the wording of a statute is clear and explicit, judicial interpretation other than that called for by the language expressed therein is not permissible.”   De Flesco v. Mercer County Bd. of Elections, 43 N.J.Super. 492, 498 (App.Div.1957).   Thus, a court may not “presume that the legislature intended something other than that expressed by way of the plain language of the statute.”  James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 566 (2014) (citations and internal quotation marks omitted).

Here, Farnath did not elect to purchase the additional coverage.   Consequently, he is not an employee within contemplation of the Act. Moreover, his reliance upon Henk v. E. Air Taxi, Inc., 91 N.J.Super.   317 (App.Div.1966), where we held that corporate officers have employee status under the Act when they perform work, which if performed by anyone else, would be considered work by an employee, is misplaced.  Id. at 319.   That case was decided prior to the 1999 amendments to the Act which expressly added the language that members of a limited liability company “shall be deemed an ‘employee’ if the business ․ elects to obtain coverage” for the member of the limited liability company.

The remaining arguments advanced on behalf of Farnath are without sufficient merit to warrant further discussion in a written opinion.   R. 2:11–3(e)(1)(E).



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