Court Affirms Higher Wage for Employee Injured on First Day

Saturday, July 14, 2007 | 0

By John H. Geaney

In the case of Jesus Ventura v. Reliable Wood Products, A-4554-05T1, (App. Div. March 30, 2007), the petitioner was seriously injured on his first day of work for the respondent. He had gone to a supermarket parking lot in Orange, N.J. and was looking for work. He was approached by three employees of Reliable, who asked if he wanted to work.

Petitioner said that one of the three employees told him that he would be cutting wood with a power saw and would receive $100 per day. He said he also asked if this would be permanent work and was told it would be. When he arrived at the work location, he said he signed no papers and had no other discussions about pay. He was issued work clothes and commenced working around 7 a.m., cutting tree trunks with a long power saw. One of the co-workers struck petitioner's right leg and foot with a machine he was operating, resulting in the amputation of the petitioner's right foot.

The issue in trial and on appeal concerned the wage of the petitioner. Respondent contended that petitioner was to be paid the minimum wage or $6.15 per hour. It also contended that none of the three employees who approached the petitioner ever discussed wages. Further, the respondent purported to introduce paperwork, which contained the wrong spelling of petitioner's name, as proof that petitioner would only receive $6.15 per hour.

Since New Jersey temporary and permanency disability rates depend on the amount of overall wages, respondent's position would have meant a large reduction in benefits to the petitioner.

The judge of compensation did not find respondent's witnesses to be convincing. The judge also took judicial notice of a newspaper article reporting that $100 per day was the going rate for day laborers. The respondent argued that a judge cannot take judicial notice of something as variable as wages for day laborers. The Appellate Division concurred with respondent on this point: namely, that this was not a fact appropriate for judicial notice.

On the larger issue, however, the court did agree that the judge of compensation's decision was supported by the evidence. The court noted that it was not plausible that no discussion of wages would have taken place at the supermarket. As for the paperwork which petitioner allegedly signed when he arrived at the work location, the court commented that it had the wrong name of the petitioner in places, (Jose Ventura instead of Jesus Ventura). Respondent contended that petitioner gave a Social Security card with the name Jose Ventura, but petitioner said he did not have one.

Obviously, the lesson in this case is that wages need to be confirmed in writing. Petitioner did not speak much English, and the document he allegedly signed (with the wrong first name) were not in Spanish. The case also points out an obvious fact: what the parties agree to on the first day will control wages and will be used to compute an average weekly wage, particularly if the injury occurs early on during employment.

John H. Geaney is an attorney at Capehart Scatchard. This column first appeared in the law firm's case law newsletter. The law firm's Web site is www.capehart.com.

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