This is the court’s decision in the matter of Artur Wirkijowski v. US Pack Courier Service Corp and Contractor Management Service Claim Petition 2008 30878 and Artur Wirkijowski v. Dompat Trucking LLC and Robert Balon, Individually Claim Petition 2008-27756.  The issues before the court are three: 1: does New Jersey have jurisdiction; 2: is petitioner an employee or independent contractor; and 3: if New Jersey does have jurisdiction and petitioner is an employee, is there workers’ compensation coverage.

Petitioner was injured in New York City on September 3, 2008 while unloading a skid from a box truck he was driving for respondent US Pack Courier Service Corp (hereinafter “US Pack”).  The truck in question had a sign on it that read US Pack.

Petitioner resides in New Jersey.  He began making deliveries for US Pack in February 2008.  Initially, petitioner drove a van which had a sign for US Pack.  In July 2008, petitioner began driving a box truck which also bore a US Pack sign.  Petitioner did not own any of the vehicles that he drove.  The vehicles were kept at a Port Authority warehouse in Jersey City.  Petitioner reported to the Jersey City warehouse each day and loaded his assigned vehicle.  Following the completion of his deliveries, the petitioner returned the vehicle to the Port Authority Jersey City warehouse, and from the warehouse, he would fax the daily manifests to the US Pack office.  Petitioner made deliveries to locations in both New York and New Jersey.

 Petitioner delivered primarily to two companies for US Pact.  Three days per week he delivered to the Port Authority and two days per week to Chase Bank.  On the day of the accident, petitioner reported to the Jersey City warehouse, loaded his truck and traveled to New York City where the accident happened.

Petitioner did not work for any other company.  He was paid every two weeks.  Generally, another US Pack employee, who also lived in New Jersey, would bring petitioner’s pay check to the Jersey City facility.  At the time of hire, petitioner was told he would receive a US Pack uniform, but it was never provided to him.  A Mr. Balan told petitioner what deliveries to make and petitioner understood that Mr. Balan received his instructions from US Pack.  If petitioner wanted a day off, he called Rada, the US Pack dispatcher.

Petitioner testified that he signed a Membership Application and Agreement with Contractor Management Service (hereinafter “CMS”) for which he paid a fee.  The CMS agreement was signed in the US Pack New York office.  Petitioner did not know why he had to sign the CMS agreement.  Petitioner received all of his instructions from US Pack and none from CMS.  After signing the CMS agreement, petitioner had no further contact with CMS.

Jurisdiction

New Jersey has jurisdiction over the subject claim.  Petitioner resides in New Jersey.  Petitioner begins and ends his work day in New Jersey.  Petitioner transmits work documentation from New Jersey to the office in New York. Petitioner receives his paycheck in New Jersey.  New Jersey is the state where the employment relationship is carried out and the state where the petitioner resides.  See, Phillips v. Oneida Motor Freight, Inc., 163 N.J. Super. 297, 303-304 (App. Div. 1978).

Employment

Petitioner is an employee of US Pack.  It is of no moment that the agreement between petitioner and CMS refers to petitioner as an “independent contractor.”

N.J.S.A. 34:15-36 defines “employee” as being “synonymous with servant, and includes all natural persons, including officers of corporations, who perform service for an employer for financial consideration…”   The definition of “employee” under the Workers’ Compensation Act is “broad… [and] includes relationships not ordinarily considered to constitute employment.”  Hannigan v. Goldfarb, 53 N.J. Super. 190, 195 (App. Div. 1958).   The definition of “employee,” like the Workers’ Compensation Act as a whole, “is construed to bring as many cases as possible within its coverage.”  Id.

An “independent contractor,” on the other hand, 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 accomplished, but only as to the result of the work.”  Lesniewski v. W.B. Furze Corp., 308 N.J. Super. 270, 280 (App. Div. 1998). 

In this case, the petitioner was economically dependent upon US Pack.  Petitioner worked full-time as a courier for US Pack from the date of hire until the date of the accident.  Petitioner’s work as a courier constituted an integral part of the regular and continuing functioning of US Pack’s business.  US Pack is a courier service delivering packages throughout the tri-state area.  There cannot be a courier service without couriers.  The petitioner has satisfied the “relative nature of the work” test set forth in Tofani v. LoBiondo Brothers Motor Express, Inc., 83 N.J. Super. 480, 486 (App. Div. 1964), aff’d. o.b. 43 N.J. 494 (1964), and as such, petitioner is an employee of US Pack.

The agreement petitioner signed with CMS, like the agreement signed by the realtors in ReMax v. Wausau Insurance Co., 162 N.J. 282 (2000), “is simply another sophisticated attempt to thwart the employer/employee relationship.”  Id. at 288. The existence of an employment relationship is not determined by a description given it by the parties.

Coverage

Charter Oak Fire Insurance Company (hereinafter “Charter Oak”) is obligated to provide workers’ compensation benefits to the petitioner Mr. Wirkijowski.

As previously noted, respondent US Pack is a courier service.  The application for workers’ compensation insurance asked US Pack for a description of the business/description of operations.  US Pack wrote:  “Courier service.  Dispact (sic) only.  Drivers are employees of another corporation and have proff (sic) of workers’ compensation coverage.”   Based upon this application, Charter Oak issued a workers’ compensation policy to US Pack for the period September 24, 2007 to September 24, 2008 for coverage of clerical office employees only.  Charter Oak argues that there is no workers’ compensation coverage because petitioner was a driver for US Pack and not a clerical worker.  The court rejects Charter Oak’s argument.

The relevant statute is N.J.S.A. 34:15-87 which provides, in pertinent part,  “…no provision of such policy shall be construed to restrict the liability of the insurer to any stated business, plant, location, or employment carried on by an assured unless the business, plant, location, or employment excluded by such restriction shall be concurrently separately insured or exempted as provided by this article…Any policy issued contrary to the provisions of this section shall be construed as incorporating the provisions herein contained.  No insurer shall, in action brought upon such policy, plead in defense of such action any provision of such policy which violates any provision of this section.”

The court has already determined that petitioner, at all times relevant, was an employee of the respondent US Pack.  Respondent does not have another workers’ compensation policy to cover its drivers.

Under N.J.S.A. 34:15-71 every employer, except public bodies, must make provision for injured employees and their dependents as provided for in N.J.S.A. 34:15-77 and 78.  “Such insurance is for the benefit of the employee …  the legislature intended that the employee in the course of his employment should have the benefit of insurance…The legislature intended that the employee was be protected at all times by reason of the compulsory insurance law.  The employee’s right arises under the statute and not under the policy which must be given the declared statutory meaning.”  Romano v. DiDonato, 127 N.J.L. 440, 445 (1941).

The Workers’ Compensation Act is to be liberally construed to meet the remedial nature of the act.  Id.  As the New Jersey Supreme Court said in Romano, “[t]he carrier knows its insured; it has access to his books.  It can find out precisely what he is doing.  The employees have no access to the policy.  It is very doubtful if they could understand it if they studied it for years.  They can, however, rely upon the insurance law passed for their benefit.”  Id. at 445-446.  The statute precludes Charter Oak from insuring one class of its workers and excluding another category of workers “unless the business, plant, location, or employment excluded by such restriction shall be concurrently separately insured or exempted by [The Workers’ Compensation Act].”  Here, respondent neither concurrently nor separately insured the petitioner, and respondent’s business is not exempted under The Workers’ Compensation Act.

Claim petition 2008-27756 is dismissed for failure to sustain the burden of proof.  Petitioner is not an employee of Contractor Management Serv. and therefore Contractor Management Serv. is dismissed from claim petitioner 2008-30878. 

Petitioner is an employee of US Pack and Charter Oak is obligated to provide workers’ compensation benefits to the petitioner.  Charter Oak, of course, is free to conduct an audit of the respondent’s business and adjust premiums as appropriate. The case will be listed for a pre-trial conference to discuss the specific compensation benefits due to the petitioner.  Fees are as assessed in the Order for Judgment.

October 12, 2011            

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Diana Ferriero, J.C.