The instant matter comes before the Court for a determination of whether or not Petitioner Raisa Krolikowski was an employee of the Respondent, Alexander Granovsky, at the time she was injured.  For reasons more particularly set forth herein, said determination is made in the negative.

On October 5, 2007 Petitioner filed a claim petition,  CP 2007-27158, which alleges a compensable injury to her “head, face, right shoulder, right elbow, scalp, neck, brain, internal, spine” suffered on “August 2, 2006” when she “fell on [a] stairway.” The Petition asserts that the alleged accident took place on “premises;” that her occupation is “home attendant;” and that her wages are “maximum.”  Respondent Alexander Granovsky is identified as the person to whom the accident was reported on August 2, 2006..

On January 17, 2008 Respondent filed an Answer denying the Petitioner was “in employment,” denying that the injury “arose out of and in the course of employment,” and denying that there was coverage under Article 2 of R.S. 34:15. The Answer asserts that the Petitioner “slipped and fell on  [a] stairway of [a] common building area” at “331 Willow Avenue, not in respondent’s rented apartment” and that Petitioner’s occupation is “self employed independent contractor [of a] cleaning service with her husband.”  Notice of the injury on August 2, 2006 is admitted and a wage of “$60.00 every other week” is asserted.  Finally, the Answer asserts directly that “Respondent denies that petitioner was his employee at the time of the alleged accident.”

 The parties have agreed to bifurcate the matter, and submit to the Court for a determination of whether the Petitioner is an employee or an independent contractor.

There being no areas of agreement warranting stipulations, the hearing  commenced on July 23, 2008 with the testimony of the petitioner, Raisa Krolikowski.

            The Petitioner testified that she came to the United States in 1995 and that soon after her arrival she obtained work as a kitchen helper/cafeteria worker at the Kirvas Joel girls’ school in Monroe, New York.  She worked at that job for about a year and a half. In 1997 and 1998 she worked for the Schwartz family in the Williamsburg section of Brooklyn as a babysitter, with responsibilities for laundry and house-cleaning but not food preparation. In 1999 she obtained employment with Confident Care Corporation as a “home attendant” with responsibilities to help elderly people as a home aide. On average, she worked six days a week and eight hours a day, usually from 7AM until 3 PM. She helped her clients bath and dress, prepared meals, did the laundry and house cleaning, shopped, accompanied clients to the doctor and simply spent time with them. She was engaged in this work continuously, until August 2, 2006 when she was injured.

            Sometime in 2003 or 2004 Petitioner was asked by the Respondent’s grandmother to help her grandson by cleaning his old apartment.  She agreed, receiving $280 for three days work, and shortly thereafter cleaned his new apartment, receiving $240 for two days work.  About a month later she agreed to regularly clean the Respondent’s apartment. 

Petitioner was expected to clean up the tub, the bathrooms and the kitchen. She would also vacuum, clean the floors and do the laundry.  She agreed to do this work every other week for a price of $60, $10 of which was to cover the cost of the laundry. She appeared every other Wednesday at about 3:30 PM and worked for five and one-half to six hours. It was the petitioner who decided on the time and day when she would work, based upon what was best for her schedule.  The Petitioner also decided in what order to do the work and how to do it. She used the Respondent’s cleaning supplies but, when she needed something or it ran out, she would inform the Petitioner and he would obtain the same.  The Petitioner decided what Laundromat to use and was free to conduct her own business while the machines were running, often doing shopping for herself or her own laundry.  The Respondent told her that she did a good job but did not otherwise tell her what to do or how.  

In October of 2005 the Respondent’s girlfriend moved in and asked Petitioner to iron the laundry, but she refused.  Petitioner also refused a demand that she clean weekly, rather than bi-weekly, and she again refused.  In February of 2006 Petitioner demanded an increase, due to the additional work consequent to the girlfriend moving in.  Petitioner threatened to quit unless she was paid more and thereafter began receiving $80 per cleaning day.

During the time she was regularly cleaning the Respondent’s apartment, the Petitioner took a three week vacation, during which she did not appear to clean the apartment.  She informed the Respondent that she would not be cleaning and received no pay for that period.  She did not seek the Respondent’s permission and intended to take the vacation regardless of his position on the issue.

Petitioner was paid cash, which was simply left “on the table” in the agreed upon amount. No taxes were deducted and no  W-2 or 1099 was ever issued.  The Petitioner did not report the income or pay taxes thereon.

On August 2, 2006 the Petitioner’s husband drove her to the Respondent’s apartment, arriving around 3:10 PM.  She let herself in the front door with a key in her possession and went up to the second floor apartment. Respondent’s girlfriend was there with some friends and Petitioner merely said “shalom” and gathered up the laundry and the cash from the table.  She threw the two sacks of laundry over her shoulder and left the apartment to join her husband to travel to the Laundromat.  As she started down the stairs she tripped and fell, recalling nothing further until she awoke in the hospital.

Sometime following the fall, Petitioner returned the keys and $80 cash to the Respondent.  On August 15, 2006 she completed an application for temporary disability benefits wherein she listed “Confident Care Corp.” as her employer; “home attendant” as her “full time” occupation and “August 3, 2006” as her first day unable to work due to an “accident” which was “not caused by” her job.  The “weekly wages” listed on the form were those from Confident Care.

Respondent presented no witnesses and the Petitioner’s testimony is therefore undisputed.

LEGAL ARGUMENT

The Petitioner argues that she was an employee of Respondent,  Alex Granovsky, at the time of her injury on August 2, 2006 and that said injury is therefore compensable as arising out of and in the course of that employment.  She asserts that she provided domestic and housekeeping services in exchange for financial consideration on a regular ongoing basis.  She posits that the regular performance of the services satisfies the requirement that a valid contract of services exists between herself and the Respondent. She invites an analysis of the relationship utilizing the “control test’ and the “relative nature of the work test” developed by New Jersey courts, in order to distinguish between employees and independent contractors, for purposes of workers compensation.  She notes that the actual exercise of control is not as determinative as the right of control itself.  She points to the fact that she utilized the Respondent’s equipment and supplies in the performance of her cleaning duties, and that she had specific designated cleaning duties, as supportive of a finding that the Respondent had the requisite “right of control.” She maintains that she was working under the Respondent’s authority in keeping with his expectation that she was performing specific services in order to satisfy respondent’s interest in having his laundry done and his residence maintained in a reasonable manner.

Respondent argues that the Petitioner is an independent contractor, and therefore not entitled to coverage under workers compensation, asserting that the application of the “control test” and the “relative nature of the work test” support that proposition.  Respondent cites the Petitioner’s control over the day, time and frequency of her performance of her cleaning tasks as well as her control over the means and method of performance of those tasks.  He notes that he exercised no supervision whatsoever, rarely being present while the tasks were performed.  Respondent dismisses the provision of “cleaning supplies and equipment” as of minimal significance, and merely a matter of convenience mitigated by the fact that the Petitioner acknowledges that the Respondent provided cleaning supplies in accordance with the Petitioner’s instructions when conveyed.  Respondent notes that the Petitioner failed to demonstrate substantial economic dependence upon him, being employed full time by Confident Care and listing them as her employer when applying for temporary disability benefits.  Respondent further submits that petitioner’s services had no relation whatsoever to his business (he asserts that he is an attorney in New York) and that no “functional integration” of their operations could be demonstrated.  Finally, Respondent points out that the purposes of the Workers Compensation Act, as “humane social legislation designed to place the cost of work-connected injury on the employer who may readily provide for it as an operating expense,” are not served by a finding of employment in this instance.

LEGAL DETERMINATION

            NJSA 34:15-36 provides, in pertinent part:, that:

“Employer” is declared to be synonymous with master, and includes natural persons, partnerships, and corporations; “employee” is synonymous with servant, and includes all natural persons, including officers of corporations, who perform service for an employer for financial consideration, exclusive of…. casual employments, which shall be defined, if in connection with the employer’s business, as employment the occasion for which arises by chance or is purely accidental, or if not in connection with any business of the employer, as employment not regular, periodic or recurring;

It is well settled and understood that “independent contractors” are excluded from the aforesaid definition of “employee” and therefore from coverage under the Workers Compensation Act.  It has long been accepted that:

An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work.

The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done. * * * It will be seen, therefore, that the ultimate question in this case is, who had control of the operation." Cappadonna v Passaic Motors, Inc., 136 N.J.L. 299, 300 (Sup. Ct. 1947), aff’d 137 N.J.L. 661 (E&A 1948)

The difficulty, of course, is determining a mechanism for distinguishing between employees, to whom benefits are provided, and independent contractors, to whom they are not. As explained in Pollack v. Pino’s Formal Wear, 253 N.J. Super., 397, 407 (App.Div.1982):

To help determine if an individual is an "employee" within the meaning of N.J.S.A. 34:15-36 or an independent contractor, the courts developed two tests: (1) the "control test" and (2) the "relative nature of the work test." These two tests are basically designed to draw a distinction between those occupations which are properly characterized as separate enterprises and those which are in fact an integral part of the employer's regular business. The courts have placed greater reliance upon the relative nature of the work test. Citing Smith v. E.T.L. Enterprises, 155 N.J. Super. 343, 350 (App. Div. 1978)

The “control test” was addressed in Lesniewski v. W.B. Furze Corp., 308 N.J. Super. 270, 281 (App.Div.1998), where the court said: 

There are several factors to be considered in determining whether a master-servant relationship exists under the "control test." These factors include, among others, evidence of the right of control, right of termination, furnishing of equipment, and method of payment. Citing Aetna Ins. Co. v. Trans American Trucking Service, Inc., 261 N.J. Super. 316, 327, 618 A.2d 906 (App. Div. 1993).

The  overwhelming weight of the evidence in this matter militates toward a finding that there is a “lack” of control exercised by the Respondent over the Petitioner.  The Petitioner determined the date and time services were to be performed based upon her own convenience and to allow her to continue in her full time employment. When Respondent sought, through his girlfriend, to add “ironing” to the tasks to be performed the Petitioner simply refused.  When Respondent sought to have services provided “weekly” rather than “bi-weekly” Petitioner simply declined.  When Petitioner wanted to take a vacation and cancel “services” to allow same, she did not seek permission, she merely informed the Respondent that she would not be there.  Payment was made in “cash” without deductions for payroll taxes and for performance of the “task,” rather than for engagement for a specific time period.  Petitioner regularly addressed personal business during the course of her performance of services for the Respondent.  Even the provision of equipment and supplies by the Respondent was mitigated by the practice whereby supplies were obtained in accordance with the Petitioner’s instruction.  This Court can come to no other conclusion than that the Respondent contracted for cleaning services and exercised no specific control thereafter, except as concerned his satisfaction or dissatisfaction with the end result.

The Court in Conley v. Oliver and Co., 317 N.J.Super. 250, 256 (App. Div.1998) addressed the “relative nature of the work test,” asserting that:

In applying this test, a court must determine "whether the work done by the petitioner was an integral part of the regular business of respondent,” and whether petitioner had a "substantial economic dependence on respondent," "[T]he determinative criteria [are] not the inconclusive details of the arrangement between the parties" but rather "whether or not the work is a part of the regular business of the employer." (citations omitted)

Here the Petitioner clearly lacked a substantial economic dependence upon the Respondent.  Her wages from her regular full time employment as a “home attendant” exceeded $580 weekly immediately prior to her injury, while her work for Respondent produced $40 weekly.  Petitioner’s work for the Respondent in cleaning his apartment and washing his laundry cannot be considered as an integral part of the Respondent’s regular business as an attorney. Under the “relative nature of the work test” it cannot be concluded that the Petitioner’s work is related to that of the Respondent.  Petitioner herself asserted that she was a full time home attendant and that the accident at issue was not related to her employment.

Finally, this court is mindful of the obligation to construe the term “employee” “liberally in order to bring as many cases as possible within the coverage of the act.” Hannigan v. Goldfarb, 53 N.J. Super. 190, 195 (App. Div. 1958).  It is also to be recalled, however, that “the function of Workers' Compensation legislation is to require the consumer to ultimately bear the cost of injuries to workers through the cost of the service or product. Keretsz v Korsh, 296 N.J.Super. 146, 152 (App. Div. 1996).  It cannot reasonably be argued that the ultimate consumer of the Respondent’s legal services can rationally be expected to bear the costs of the cleaning of his apartment and laundry.  The entirety of the circumstances surrounding the relationship of the parties here allow but one conclusion, that an employer/employee relationship has not been established and the injury suffered by the Petitioner is therefore not compensable.  The claim of the Petitioner in this matter is therefore dismissed with prejudice.   

DATE: October 15, 2008

                                                            ________________________________

                                                            Kenneth A. Kovalcik, JWC