SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1426-20

JACK G. KEARTON,

Petitioner-Respondent,

v.

E.W. MILLWORK, LLC,

Respondent-Appellant.

__________________________

Submitted December 6, 2021 – Decided January 27, 2022

Before Judges Sumners and Vernoia.

On appeal from the New Jersey Department of Labor 

and Workforce Development, Division of Workers' 

Compensation, Claim Petition No. 2005-6845.

Dickie McCamey & Chilcote, PC, attorneys for 

appellant (Dorothy T. Daly, of counsel and on the 

briefs; Michelle D. Gasior, on the briefs).

Stephen D. Berryhill, attorney for respondent.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-1426-20

Respondent E.W. Millwork, LLC appeals the Division of Workers' 

Compensation court orders of January 14, 2008, denying its motion to dismiss 

the petition of Jack G. Kearton, and June 23, 2008, denying its motion for 

reconsideration.1 We agree with E.W. Millwork that Kearton, one of its two 

members, did not affirmatively elect workers' compensation owner's coverage

as required by N.J.S.A. 34:15-36 and, therefore, we reverse. 

On August 27, 2003, Kearton sustained several injuries2 while working at 

E.W. Millwork, a manufacturer of wooden railings and moldings. He formed 

the limited liability company earlier that year with his equal owner, Edward 

Brigante.3

 

On March 4, 2005, Kearton filed a workers' compensation petition seeking 

medical treatment and temporary disability benefits. Almost eight months later, 

1

 Defendant's notice of appeal only seeks review of the compensation court's 

January 14, 2008 order, not the June 23, 2008 order. We could, therefore, limit 

our review to that order alone. See W.H. Indus., Inc. v. Fundicao Balancins, 

Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the 

orders designated in the notice of appeal that are subject to the appeal process 

and review."). We choose to overlook that technical error because, as discussed 

later, our reversal of the January 14 order makes review the June 23 order moot. 

2

 Keaton alleged that his left knee was struck by a steel rod, causing permanent 

injuries to his left leg, knee, and back. 

3

 In December 2003, Brigante left the business and withdrew his membership. 
3 A-1426-20

E.W. Millwork through its workers' compensation carrier Zurich American 

Insurance Company, filed a motion to dismiss the petition, arguing coverage 

was not provided to its two members because the application for coverage did 

not request coverage for them. 

After a three-day hearing, the workers' compensation judge issued a bench 

decision on January 14, 2008, denying the motion. The court determined that 

Richard E. Pawlak, the insurance producer, made a mistake on E.W. Millwork's 

workers' compensation insurance application and should have elected coverage 

for Kearton and Brigante. The court also found that Zurich was negligent and 

should have looked at the policy to ensure that coverage was provided to the 

members. 

E.W. Millwork filed a timely motion for reconsideration, arguing the 

policy "clear[ly] and unambiguous[ly]" did not provide coverage for its

members and there was no such endorsement listed on the declaration page. 

Since there was no affirmative choice for members' coverage––declining it twice 

on the application, E.W. Millwork argued Kearton was not covered as an 

employee of the company. Because the compensation court that issued the 

January 14 order retired, a different court decided the motion. On June 23, the 

compensation judge entered an order denying the motion, stating in his bench 
4 A-1426-20

decision that he was "taking the coward's way out" by not deciding the merits, 

believing for him to do so "would [require] trying [the hearing] over again."4

 

Kearton suffered a second workplace injury on April 24, 2009, resulting 

in an additional claim petition that was consolidated with his initial petition for 

trial on the nature and extent of his injuries. On May 4 and 5, 2017, a third 

compensation judge presided over the trial, again due to retirement. 

On December 23, 2020, the matter was concluded by a fourth 

compensation judge, who issued a final order of judgment regarding the 2003 

work-related accident, awarding Kearton 46.5% partial total permanent 

disability for his injuries. 

 Before us, E.W. Millwork argues:

POINT I 

IT WAS NOT WITHIN THE [COMPENSATION 

JUDGE'S] DISCRETION TO DENY THE MOTION 

FOR RECONSIDERATION OF THE QUESTION OF 

WORKERS' COMPENSATION COVERAGE FOR 

[KEARTON].

POINT II 

THE MOTION TO DISMISS FOR LACK OF 

COVERAGE FILED BY RESPONDENT/CARRIER 

ZURICH AMERICAN INSURANCE COMPANY 

4

 On August 20, 2008, this court denied E.W. Millwork's motion for leave to 

appeal. 
5 A-1426-20

SHOULD HAVE BEEN GRANTED, AS THE 

EVIDENCE IN THE RECORD CLEARLY 

ESTABLISHES AT THE TIME THE APPLICATION 

FOR INSURANCE WAS SIGNED, THERE WAS AN 

INTENT NOT TO COVER THE MEMBERS OF THE 

LIMITED LIABILITY CORPORATION.

A. THE APPLICATION OF INSURANCE WAS 

NOT AMBIGUOUS ON ITS FACE AND THUS THE 

[COMPENSATION JUDGE] SHOULD HAVE 

GIVEN THE APPLICATION AND POLICY ITS 

PLAIN MEANING.

We agree with E.W. Millwork that the compensation court erred in not 

granting its motion to dismiss Kearton's claim because he was not included in 

his company's workers' compensation coverage. The compensation judge's 

findings were not supported by credible evidence in the record, and, in our de 

novo review of its legal findings, we are convinced coverage was not afforded 

to Kearton. See Hersh v. Cnty. of Morris, 217 N.J. 236, 242-43 (2014). 

Under N.J.S.A. 34:15-36, members of a limited liability company, "who 

actively perform services on behalf of the" company, "shall be deemed an 

'employee' of the" company "for purposes of receipt of benefits and payment of 

[workers' compensation insurance] premiums pursuant to [the Workers' 

Compensation Act5

], if the" company "elects, when [its] workers' compensation 

5

 N.J.S.A. 34:15-1 to -128.
6 A-1426-20

policy . . . is purchased or renewed, to obtain coverage for the" company's

members. "[T]he election may only be made at purchase or at renewal and may 

not be withdrawn during the policy term." Ibid. For any member of a limited 

liability company to opt in for workers' compensation coverage, all members 

must do so. 38 N.J. Practice, Workers' Compensation Law § 3.4 at 35 (Jon L. 

Gelman) (3d ed. 2000, 2020 Supplement).

Based on the record before us, we conclude E.W. Millwork did not obtain 

workers' compensation coverage for Kearton. Both Brigante and Kearton

testified that they were supposed to be covered under their company's workers' 

compensation coverage. Nevertheless, it is undisputed that E.W. Millwork's 

application did not request such coverage. Pawlack testified he informed 

Brigante, who was responsible for securing insurance coverage for the company, 

of the consequences of not electing coverage for the company's members. He 

told Brigante that without coverage for members, if there was an "on[]the[]job 

or occupational injury, illness, sickness[,] or disease, there would be no 

coverage for neither he nor []Kearton." Notwithstanding that advice, he stated 

Brigante chose not to select coverage for the members. 

A separate document to the insurance application titled "NOTICE OF 

ELECTION - PROPRIETORS AND PARTNERS," included an "x" within a box 
7 A-1426-20

stating that "COVERAGE IS REJECTED." In addition, a section titled 

"COMPLETE THIS SECTION ONLY WHEN COVERAGE IS ELECTED" had 

Kearton's and Brigante's names filled in underneath, but the sections for 

"ESTIMATED ANNUAL WAGE[S]" and "DUTIES," which was required to 

provide coverage for them, was not completed. Although the application listed 

E.W. Millwork having six employees for a total wage of $155,000, it did not 

specify the amount of the members' wages. According to Pawlack, the member's 

names were only included in the section in case Brigante chose to elect coverage 

prior to signing, and if he did so, the form could be completed––which it was 

not. 

Despite the clear fact that E.W. Millwork's application did not request 

workers' compensation coverage for its members, the compensation judge 

justified finding there was coverage based on Pawlack's mistake in not selecting

coverage for members. The judge also found that Zurich was negligent and 

should have looked at the policy to make sure coverage was provided for the 

members. Without further explanation, the judge determined that Kearton was 

a covered employee. This was error. 

Accepting Pawlack erred, there was no legal basis cited by the 

compensation judge for imputing liability on Zurich—by finding coverage that 
8 A-1426-20

was not requested—based on that error. Any mistake by the producer should be 

borne by him. There is no evidence to support the finding that Zurich was 

responsible for Brigante's failure to secure workers' compensation coverage for 

Kearton and him. Contrary to the judge's finding, there is nothing ambiguous

about the application that warrants imposing coverage for Kearton. It clearly 

provided how the company's members had to obtain workers' compensation, and 

the completed application plainly showed coverage for the members was not 

requested. 

We find no merit in Kearton's argument that the insurance policy should 

be construed against Zurich because he was included as an employee under the 

$155,000 total wages listed in the application. At the motion to dismiss hearing, 

Kearton testified that five employees would be paid for fifty-two weeks, with 

total annual salaries of $104,000. The remaining $51,000 represented his salary 

with Brigante not receiving salary. Kearton claimed Zurich calculated E.W. 

Millwork's premium coverage based on $155,000 total wages, thereby covering

him.

6

 The testimony, however, contradicts the plain language of the insurance 

application, which specifically requires the listing of members' salary. As noted, 

6

 Kearton later gave contradictory testimony at the May 5, 2017 permanent 

disability trial that there were probably "eight or ten" employees when the 

business was first formed. 
9 A-1426-20

the required information was not provided. We recognize the Workers 

Compensation Act is social legislation that is liberally construed "to implement 

the legislative policy of affording coverage to as many workers as possible." 

Brower v. ICT Group, 164 N.J. 367, 373 (2000). Nevertheless, we cannot 

authorize coverage where there is a clear disregard of a statutory requirement as 

was the case here. 

Finally, as for E.W. Millwork's arguments regarding the June 23, 2008 

order denying its reconsideration motion, they are moot given our conclusion 

that the compensation judge erred in entering the January 14, 2008 order denying 

the motion to dismiss being reconsidered. That said, we are compelled to point 

out that the compensation judge who entered the June 23, 2003 order did not 

fulfill his obligation to address the merits of the motion and explain its denial. 

See Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) ("Meaningful 

appellate review is inhibited unless the judge sets forth the reasons for his or her 

opinion." (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990))). 

The judge should not have avoided his duty by leaving reconsideration of the 

January 14 order to "appellate review." Even though that order was entered by 

a different compensation judge, the reconsideration court had the responsibility 

and the ability to review the record of the proceeding that produced the order. 
10 A-1426-20

In short, the judge punted without making any effort to fulfill its judicial 

function. 

Reversed and remanded for entry of an order consistent with this opinion. 

We do not retain jurisdiction.