Pollack v. Pino's Formal Wear & Tailoring

• Decision Date: 28 January 1992
• Citation: 253 N.J.Super. 397,601 A.2d 1190
• Parties: Veronica POLLACK, Administratrix of the Estate of John Pollack, Deceased, Petitioner-Respondent, v. PINO'S FORMAL WEAR & TAILORING and Ernest Polgardy, Respondents-Appellants. Veronica POLLACK, Petitioner-Respondent, v. PINO'S FORMAL WEAR & TAILORING and Ernest Polgardy, Respondents-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 397

253 N.J.Super. 397

601 A.2d 1190

Veronica POLLACK, Administratrix of the Estate of John

Pollack, Deceased, Petitioner-Respondent, v. PINO'S FORMAL WEAR & TAILORING and Ernest Polgardy,

Respondents-Appellants.

Veronica POLLACK, Petitioner-Respondent, v. PINO'S FORMAL WEAR & TAILORING and Ernest Polgardy,

Respondents-Appellants.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 1, 1991.

Decided Jan. 28, 1992.

Burton J. Jacowitz, Livingston, argued the cause for respondent-appellant Pino's Formal Wear & Tailoring (Braff, Ertag, Wortmann, Harris &amp Sukoneck, attorneys; Burton J. Jacowitz, of counsel and on the brief).

Bernard A. Campbell, Jr., Trenton, argued the cause for respondent-appellant Ernest Polgardy (Destribats, Campbell, Desantis & Magee, attorneys; Bernard A. Campbell, of counsel and on the brief).

Roland R. Formidoni, Lawrenceville, argued the cause for petitioner-respondent Veronica Pollack, Individually and as Administratrix of the Estate of John Pollack, Deceased (Lenox, Socey, Wilgus, Formidoni & Casey, attorneys; Roland R. Formidoni, of counsel and on the brief).

Before Judges MICHELS, HAVEY and CONLEY.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Respondent Pino's Formal Wear & Tailoring (Pino's) and respondent-employer Ernest Polgardy (Polgardy) appeal from two judgments of the Division of Workers' Compensation that awarded petitioner Veronica Pollack, individually and as administratrix of the Estate of her husband, John Pollack, deceased (Pollack), temporary disability benefits and dependency death benefits following an injury sustained by Pollack in the course of his employment with Polgardy.

Briefly, Carmelo G. Armano (Armano), the owner of Pino's, expanded Pino's in 1985 by putting an extension on the building and adding dry-cleaning services. The building contractor, Tony Spatachini (Spatachini), obtained a permit for the expansion of the Pino's building and did the roof work. All State Engineering designed the addition. Armano arranged for Polgardy to purchase and install the dry-cleaning machinery, including the necessary piping. According to Polgardy, he made all the arrangements to obtain the machinery and install it. After the machinery arrived, he hired Pollack to install the gas-fired burner and to hook up the press machines to the lines.

Polgardy would pick up Pollack each morning, drive him to Pino's and drop him off. He also picked Pollack up at Pino's each night. Pollack was to work on the Pino's job for three days only and on the last day, he was injured.

Polgardy instructed Pollack as to what had to be done on the job and gave Pollack the materials to perform the job. While Pollack hooked up the lines on the machinery, Polgardy worked in the boiler room hooking up the boiler and gas pipes. Polgardy testified that Pollack took a break every half-hour and went to Rittman's Cafe for "two shots and a glass of beer."

According to Polgardy, on the day of the accident, he picked up Pollack at Rose's Bar. Polgardy worked in the boiler room while Pollack was "already finishing up the pressing machine." At approximately 10:00 a.m., Polgardy observed Pollack enter Rittman's Cafe through the back door. He followed Pollack into the bar and saw Pollack drinking two shots and a beer. Pollack told Polgardy that he would be back to work in ten minutes. When Pollack came back to work, he climbed a ladder extending up to the roof. While on the ladder, Pollack fell. Polgardy testified that nobody saw Pollack fall, but everyone heard him land on Polgardy's car.

On August 15, 1985, three days after the accident, Dr. Julius Hafitz admitted Pollack into St. Francis Medical Center. Pollack was very shaky, had alcohol on his breath and was in great pain when he arrived at the hospital. Dr. Hafitz testified that Pollack's admission diagnosis was "pre-delirium tremen, fractured ribs and rule out occult fracture, right ankle." Dr. Hafitz explained the course of Pollack's hospital stay as follows:

He was admitted as a patient with known chronic alcoholic abuse and who had injured himself several days before being admitted to the hospital. He was shaky, he was nervous, he had a tachycardia, he also had a heart murmur which later we found he had pleural effusion and we thought he was in heart failure at the time. He subsequently became irrational and was treated for delirium tremen[s] and sedated and given fluid, which was a different situation then--here is a man with pleural effusion, with fluid in both lung fields and yet you have to give him fluids in order to maintain his existence, really. We saw a few ecchymotic spots, which indicated some bleeding. He had an anemia, which certainly went along with his liver cirrohis. [sic ]. He had a hard palapable [sic ] liver and he was slightly jaundiced. He subsequently was gotten out of his delirium tremen[s] and we noted that his blood count was dropping and that there was a drop in platelets, an increase in his prothrombin and thromboplasty type had increased in fibrinogen. Split products indicated that he had a disseminated intravascular coagulopathy.

Dr. Hafitz testified that Pollack suffered from an acute respiratory distress syndrome and that things went from bad to worse until Pollack lapsed into a coma and subsequently died. According to Dr. Hafitz, the immediate cause of Pollack's death was hepatic failure (i.e., failure of the liver to detoxify the blood). Further contributing factors in Pollack's death were: laennec cirrhosis of the liver due to alcoholism; alcoholism; ascites; delirium tremens due to alcoholism; dementia due to Korsakoff syndrome, which in turn is due to alcoholism; respiratory arrest; disseminating vascular coagulopathy; rib fractures; right calcaneus fracture and heart failure due to myocarditis, which was secondary to all of the above. Dr. Hafitz was of the opinion that "there is a causal relationship between the accident and the things that happened to this poor man and his subsequent demise." Dr. Hafitz explained that Pollack would not have died had it not been for his accident because Pollack would then have been able to walk and get a drink. However, according to Dr. Hafitz, because Pollack had the accident and could not walk, he stopped drinking and had delirium tremens, which lead to Korsakoff syndrome, which lead to myocarditis and laennec cirrhosis, then to liver failure and his death.

Petitioner filed two petitions against Pino's seeking lifetime and dependency workers' compensation benefits. She claimed that Polgardy was uninsured and, therefore, since Pino's was the general contractor, it was responsible for all workers' compensation benefits pursuant to the provisions of N.J.S.A. 34:15-79. Pino's thereafter joined Polgardy as an additional respondent with respect to each petition. The matters were consolidated for trial and the Division Judge, with the consent of counsel, bifurcated the trial so that the issues of compensability and liability were tried before the issues of disability and causal relationship. At the conclusion of the compensability and liability trial, the Division Judge held that Pollack's accident was compensable; that Polgardy was Pollack's employer; and that since Polgardy did not carry workers' compensation insurance, Pino's workers' compensation insurance carrier was responsible to provide benefits to Pollack pursuant to the provisions of N.J.S.A. 34:15-79. At the conclusion of the disability and causal relationship trial, the Division Judge found that there was a causal relationship between Pollack's accident and his death and awarded petitioner dependency benefits and temporary disability benefits for the period from the date of the accident to the date of Pollack's death. These appeals followed, and were consolidated by this court.

I.

Pino's contends that the Division Judge erred in finding that Pino's was a general contractor for purposes of N.J.S.A. 34:15-79 and, therefore, responsible to Polgardy's employee Pollack for any workers' compensation benefits to which he was statutorily entitled. We agree and reverse both judgments entered against Pino's.

N.J.S.A. 34:15-79, in pertinent part, provides:

An employer who willfully fails to provide the protection prescribed in this article shall be guilty of a crime of the fourth degree. In cases where a workers' compensation award in the Division of Workers' Compensation of New Jersey against the defendant is paid at the time of the sentence, the court may suspend sentence upon that defendant and place him on probation for any period with an order to pay the delinquent compensation award to the claimant through the probation office of the county. Where the employer is a corporation, the president, secretary, and the treasurer thereof who are actively engaged in the corporate business shall be liable for failure to secure the protection prescribed by this article. Any contractor placing work with a subcontractor shall, in the event of the subcontractor's failing to carry workers' compensation insurance as required by this article, become liable for any compensation which may be due an employee or the dependents of a deceased employee of a subcontractor. The contractor shall then have a right of action against the subcontractor for reimbursement. [Emphasis added].

Under the clear and explicit language of N.J.S.A. 34:15-79, a contractor placing work with a subcontractor shall in the event of the subcontractor's failure to carry workers' compensation insurance become liable for any compensation which may be due an employee or dependent of that subcontractor. This section requires the general contractor to make certain that the subcontractor insures his liability to pay compensation benefits as provided by the statute or else the general contractor himself will become liable to pay such benefits. This section, however, does not create the relationship of employer and employee as between...