LUVIA LOPEZ                                                         

Petitioner                                                                     

v.                                                                                                                

LISA MOSER                                                                       

Respondent                                                                           

BEFORE:

            HONORABLE EMILLE R. COX
            Judge of Compensation

APPEARANCES:

            LAW OFFICES CHARLES J. CASALE, JR., P.A.
By:       CHARLES J. CASALE JR., ESQ.
            For the Petitioner

           WILLIAM BARRETT, ESQ.
By:       DANIEL A. TOMASULO, ESQ.
            For the Respondent

 DECISION

The facts of this case are not in dispute.  Petitioner Luvia Lopez, with a friend Lucrecia Alvarez went into a joint business venture, a cleaning service, offering their services to homeowners for a set fee, based on the size of the home.  They selected the business name Two Ladies Cleaning.  They printed flyers which they distributed throughout the neighborhood which they intended to serve.  They met with homeowners who responded and arranged such details as cleaning days and hours, the areas of the home to be cleaned and the fees for their services.  They also printed business cards which they distributed to potential clients. 

Respondent Lisa Moser called the contact number listed on the flyer, met with Petitioner and her business associate and arranged to engage their services for three hours every other Friday beginning at 10:00 a.m.  On June 2, 2006 Petitioner, while cleaning the kitchen, needed to reach either the top of the refrigerator or the shelf above it.  She stood on a chair which shifted unexpectedly.  She fell and injured her left hand.  The threshold issue before the Court in this bifurcated trial is whether Petitioner was an employee of the Respondent at the time of the accident and thus entitled to workers’ compensation benefits.

Respondent contends that Petitioner is an independent contractor or, alternatively, a casual employee.  Under either classification, she is not entitled to workers’ compensation benefits.  Petitioner contends that she satisfies the criteria to be considered a domestic employee of respondent and as such is entitled to coverage under Respondent’s homeowner’s policy.  I agree with Respondent that Petitioner was an independent contractor and does not qualify for workers’ compensation benefits.

Petitioner, citing Gunther v. Metropolitan Casualty Ins. Co., 33 N.J. Super. 101  (Law Div. 1954), Gerhardt v. Continental Ins. Cos., 48 N.J. 291 (N.J. 1966) and N.J.S.A. 17:36-5.29  contends that she qualifies for coverage under Respondent’s homeowner’s insurance policy.  I disagree with that assertion.  The statute and cases cited apply specifically to domestic servants.  Gunther involved injury to a part-time maid hired by the homeowner.  In such instances, the court ruled, workers’ compensation coverage is provided under the homeowner’s insurance policy.  Similarly, in Gerhardt the issue involved workers’ compensation coverage for injuries to a domestic servant who was employed by the homeowner.  N.J.S.A. 17:36-5.29 does not provide otherwise.  The statute reads:

Every homeowners' policy or other policy providing comprehensive personal liability insurance delivered, issued for delivery, or renewed in this State on or after the effective date of this act shall afford coverage against liability for the payment of any obligation which the policyholder may incur to an injured domestic servant or household employee or the dependents thereof…………… (emphasis added)

This statute clearly applies to domestic servants only.  A domestic servant is hired to by the homeowner to perform duties as assigned by that homeowner. Even though some important issues such as the duties to be performed, the hours of work and salary may be subject to negotiation, it is the homeowner who ultimately determines those factors.

The nature of the relationship between Petitioner and Respondent in this case gives no suggestion of the master/servant relationship which was present in the referenced cases or to which N.J.S.A. 17:36-5.29 refers.  Respondent, a homeowner, responded to an advertising flyer offering cleaning service.  The parties agreed on specific days and hours.  The duties to be performed were exactly as advertised.  Respondent agreed to pay $60.00 per visit.  The arrangements were based in part on the availability of Petitioner and her business associate since they cleaned other homes in the neighborhood.  Given the arms length negotiations, the bargaining power of the parties and the terms of the agreement, I find that Petitioner is not a domestic employee of Respondent as defined in the case law or N.J.S.A. 17:36-5.29 .

Alternatively, Petitioner argues that her job duties within the home were such she qualifies as an employee and not an independent contractor as Respondent contends.  At the same time Petitioner reminds the Court that the Workers’ Compensation Act is remedial social legislation which should be liberally construed in order to afford coverage to as many workers as possible.  Despite the referenced reminder I consider Petitioner’s argument to be without merit.

It is now settled law that, in order to qualify as an employee one must meet either the control test or the relative nature of the work test.  Under the control test, an independent contractor carries on a separate business and contracts to do work according to his/her own methods, without being subject to the control of an employer except as to the results.  When the employer retains the right to control what is done and the manner in which the work is completed, an employer/employee relationship may be deemed to exist.  Lesniewski v. W.B. Furze Corp., 308 N.J. Super. 270  (App. Div. 1998).  I find no such control here.  Petitioner testified that she and her co-worker specified the type of cleaning that they performed, namely bathrooms, kitchen, floors, including vacuuming.  Even if, as Petitioner contends, the homeowner did ask to have the shelf above the refrigerator cleaned, that did not constitute control.  It was in keeping with the agreement of the parties since it was part of the kitchen cleaning.  Respondent gave no instructions on how the cleaning needed to be performed.  In fact she was not even present when the accident occurred.  She had left the house and had merely informed her teenage daughter that the cleaning ladies were still there.  The request to clean the top of the refrigerator or the shelf is similar to the request that she had previously made to have some dark spots removed from the floor.  To equate such requests with control for purposes of workers’ compensation would make employees of a multitude of service providers such as the exterminator who is asked to spray under a specific counter.  This is not the intent of the Workers’ Compensation Statute.

Petitioner in its brief appears to concede that the relative nature of the work test is inapplicable to these facts.  Respondent is a homeowner and not a business entity.  She paid a mere $60.00 every other week to Petitioner and her co-worker.  There is no economic dependence shown.

For the reasons stated, I find Petitioner was an independent contractor and does not qualify for workers’ compensation benefits.  The claim petition is dismissed.

Counsel for Respondent shall prepare an Order that reflects this decision.  It shall include a court interpreting service fee of $125.00 payable to Verbatim Translation Service and a stenographic service fee of $300.00 payable to John Trainor, Inc. both by Respondent.

Honorable Emille R. Cox
Judge of Compensation

DATED:  October 13, 2009