Estate of Kotsovska v. Liebman
___ N.J. Super. ___ (App. Div. 2013)
Decided December 26, 2013
Defendant appealed final judgment and jury verdict in favor of plaintiff in wrongful death action, contending decedent was his employee and thus the Workers' Compensation Act's exclusivity bar (N.J.S.A. 34:15-8) prohibited the estate from maintaining this action in civil court. The Appellate Division reversed the judgment of liability because the jury was improperly instructed on the question of employment relationship and remanded the matter to the Division of Workers’ Compensation for its determination of whether decedent was defendant's employee or an independent contractor. The Division of Workers’ Compensation was also directed to afterward transfer the case back to the civil court so it could either reinstate judgment in favor of the estate or dismiss the matter based on the Division's determination.
Richard Auletta v. Bergen Center for Child Development
338 N.J. Super. 464 (App. Div. 2001) cert. denied, 169 N.J. 611 (2001)
Decided March 30, 2001
The Appellate Division reversed the workers' compensation judge who concluded that petitioner, a part-time psychologist injured in a student-staff football game, was an independent contractor and not an employee of respondent. The appellate court considered that the football game was part of the employment activity at respondent and determined that petitioner's duties were an integral part of respondent's program and that petitioner was economically dependent on this employment.
Division Reserved Decisions
Cruz v. Alonzo
10-14342 decided August 16, 2011 by the Honorable Vicki Anne Citrino, J.W.C.
Petitioner filed a motion for payment of medical bills while respondent filed a cross motion to dismiss for lack of employment relationship. After reviewing the evidence, the Judge of Compensation found that the petitioner was not an employee of the respondent/homeowner under N.J.S.A. 34:15-36 because he had a permanent full-time job elsewhere, had no expectation of regular or steady employment with respondent, and performed only odd jobs on isolated and irregular occasions as a need arose. The petitioner's claim was dismissed.
Rallatos v. The ARC of Atlantic County
11-7154 decided June 28, 2012 by the Honorable Carmine J. Taglialatella, J.W.C
Respondent filed a motion to dismiss the petitioner's claim on the grounds that she was a volunteer and not an employee as defined in N.J.S.A. 34:15-36. After hearing the testimony of three witnesses, the Judge of Compensation found that a discount offered to the petitioner at a thrift shop operated by the respondent was insufficient to constitute financial consideration for working and, therefore, petitioner was serving respondent as a volunteer and consequently ineligible for workers' compensation benefits.
Tsybulskyy v. Tsybulskyy Construction LLC & Tsybulskyy v. ASAP Carpentry
09-19873; 15821 decided August 18, 2010 by Honorable Virginia M. Dietrich, J.W.C.
Petitioner filed claim petitions alleging that, on the date of his accident, he was both an employee of his own LLC as well as a subcontractor for a carpentry business. The carrier for his LLC denied liability by alleging the petitioner declined personal proprietor’s coverage when he applied for compensation insurance, while the carrier for the carpentry business denied liability by alleging the petitioner was an independent contractor. The parties agreed to try coverage issues before addressing compensability issues. After trial, the judge of compensation found insufficient evidence that the petitioner requested coverage under N.J.S.A. 34:15-36. She also found that the carrier for the carpentry business was not liable for benefits under N.J.S.A. 34:15-79.
Lopez v. Moser
07-25942 decided on October 13, 2009 by the Honorable Emille R. Cox, J.W.C
Petitioner was injured providing cleaning services for the respondent, a homeowner. She alleged she was a domestic employee under N.J.S.A 34:15-36, rather than an independent contractor. The compensation judge, however, found that the petitioner was an independent contractor mainly because she was not subject to any right of the respondent to control the details of her work.
Krolikowski v. Granovsky
07-27158 decided October 15, 2008 by the Honorable Kenneth A. Kovalcik, J.W.C.
Petitioner alleged that she was a “home attendant’ employee of the respondent, but the respondent argued that the petitioner was actually a”self-employed independent contractor”. The judge dismissed the petitioner’s claim based on his finding that, under the “control” and “relative nature of the work” tests, the petitioner failed to meet her burden of proving that she was an employee under N.J.S.A. 34:15-36.
Pope v. Salvation Army
02-40978 decided October 18, 2007 by the Honorable Peter F. Womack, J.W.C.
Petitioner alleged he was an employee of the respondent because he received an $18 weekly personal stipend, housing, meals and clothes while participating in a program that included work therapy. However, the compensation judge found the petitioner failed to prove such an employment relationship existed because petitioner was never hired to do a job for the benefit of the respondent. Instead, the judge found that the petitioner’s work therapy was merely one aspect of his drug rehabilitation program which did not create a job with the Salvation Army or constitute participation in a work release program.
Arroyo v. 84 Lumber
02-29546; 24380 decided August 4, 2006 by the Hon. Cosmo A. Giovinazzi, III, J.W.C.
Respondent denied it was responsible for paying the petitioner workers’ compensation benefits, alleging that his immediate employer was an independent contractor to whom the respondent merely “contracted out” hauling jobs. The judge rejected this argument because the evidence showed that the respondent exercised controls over various aspects of the hauling contractor’s operations and effectively made that hauler an extension of its own business operations.
Rosado v. Crescenzi & Son Concrete, Inc .
05-16154 decided on January 9, 2006 by the Honorable Robert F. Butler, J.W.C.
In response to the petitioner’s motion for temporary and medical benefits, respondent denied that the petitioner was its employee under N.J.S.A. 34:15-36 and alleged he was instead an independent contractor. However, the compensation judge rejected the respondent’s allegation finding employment under both the “control” test and the “relative nature of the work” test.
Hires v. County of Atlantic
01-39136 decided March 14, 2005 by the Honorable Cosmo A. Giovinazzi, III, J.W.C.
Petitioner, a homicide detective, worked simultaneously for both Atlantic City and Atlantic County. The Judge of Compensation found the City and County were joint employers of the petitioner. Accordingly, both were held jointly liable and ordered to share in the payment of the workers’ compensation benefits due petitioner.
Olessi v. Colavita
01-5995 decided February 24, 2005 by the Honorable Barbara Van Horn Colsey, J.W.C.
Petitioner, an almost 90 year-old aunt of the respondent, alleged that she was his domestic employee when she was hurt doing dishes in a house that she habitually used, always regarded as her own, but shared with her nephew and his family. The parties presented conflicting testimony about whether some irregular and small monetary exchanges made between the respondent and petitioner represented compensation for domestic services or merely “abusta” (informal gifts traditionally exchanged among family members). After examining the totality of the circumstances and applying the control and relative nature of the work tests, the judge found that the petitioner failed to prove that she was an employee under N.J.S.A. 34:15-36 on the date of her accident.
Behrens v. Environmental Systems
2004-51 decided on August 5, 2004 by the Honorable Emille R. Cox, J.W.C.
In response to the petitioner’s workers’ compensation claim and motion for medical treatment, the respondent denied that the petitioner was its employee as defined by N.J.S.A. 34:15-36. However, the compensation judge rejected both arguments raised by the respondent and concluded that the petitioner was indeed the respondent’s employee when the facts were analyzed using the control test and the relative nature of the work test.
Demir v. Karadeniz Texaco
95-39096, decided January 17, 2003 by the Honorable Richard E. Hickey, III, A.S.J.W.C.
Petitioner, a service station attendant, was injured in a work accident where the lessee of the service station was uninsured. The judge of compensation found that since the owner of the station and Texaco exerted control over the operation of the station, the lessee was not an independent contractor and that the owner and Texaco were responsible for workers' compensation benefits.
Patrick Cicalese v. High Power Temps
99-512199, decided January 17, 2003 by the Honorable Peter J. Calderone, J.W.C.
The workers' compensation judge found that a Motion to Implead did not require trial testimony as argued by respondent where the moving party submitted affidavits that were not contested. The judge specifically found that the general motion requirements under N.J.A.C. 12:235-3.3 applied in this situation.
Santander v. Wills Trucking Co.
99-785, decided November 20, 2000 by the Honorable Philip Bolstein, J.W.C.
The petitioner, a truck driver, entered a lease agreement with respondent that designated the petitioner to be an independent contractor. Using the “right to control test” and the “relative nature of the work test” the workers’ compensation judge disregarded the agreement and found that the petitioner was an employee of the respondent.
Fuller v. L & L Floor Covering
97-10241, decided March 31, 2000 by the Honorable William Boyle, J.W.C.
The petitioner, a carpet-installer, was found to be an employee rather then an independent contractor since his labor was an integral part of respondent’s business.
Hynes v. Charf (99-13630) and Hynes v. Kuhlmeier (99-13633)
Decided February 14, 2000 by the Honorable Neale F. Hooley, J.W.C.
Petitioner, a sub-contractor, sustained injuries after falling off a ladder while making repairs. The workers’ compensation judge held that neither the owner of the property nor the prime contractor were liable for petitioner’s injuries.
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