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Lesniewski v. W.B. Furze Corp.2/23/1998
Inc., which is cited as No.A-1001-94T5 (App. Div. Feb. 29, 1996) decided by the Appellate Division on February 29, 1996, I can only come to one Conclusion, that the petitioner at the time of the accident was in the employ of Mr. Wayne Furze who was doing business as W.B. Furze Construction Company.
The Judge then found that Lesniewski was an employee of Furze Construction:
The employment agreement of $15 per hour was negotiated and determined by the petitioner and Mr. Furze. Mr. Furze solely had the right to hire and fire the petitioner. The only scintilla of evidence pointing away from Mr. Furze is the fact that the petitioner accepted part of his payment by way of EJ's Grille, Inc.'s check. Yet, the respondent EJ's Grille did not direct, control or supervise the petitioner. In Santos v. Standard Havens, Inc., 225 N.J. Super. 16, 23 (App. Div. 1988), the court disposed this issue. In that case, the Court held that the name of the paycheck is one of the many considerations and may have little probative value. Certainly in this case, this one minuscule fact falls under the overwhelming weight of the other tests as previously enumerated in determining the employer.
The standard for our review of a decision of the Division of Workers' Compensation is detailed in Close v. Kordulak Bros., 44 N.J. 589 (1965):
he standard to govern appellate intervention with respect thereto is the same as that on an appeal in any non-jury case, i.e., "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, and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor.
[Id. at 599 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).]
The petitioner has the burden of proving the elements of his case by a preponderance of the probabilities. Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).
The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. The evidence must be such as to lead a reasonably cautious mind to the given Conclusion. "It need not have the attribute of certainty, but it must be well founded in reason and logic; mere guess or conjecture is not a substitute for legal proof."
[Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 72 (App. Div. 1989).]
When reviewing an agency determination, "due regard [should be given] to the agency's expertise where such expertise is a pertinent factor." Close, supra, 44 N.J. at 599. The factual findings and legal conclusions of the trial Judge will not
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