Estate of Myroslava Kotsovska v. Saul Liebman (073861)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

Estate of Myroslava Kotsovska v. Saul Liebman (A-89-13) (073861)

Argued March 16, 2015 -- Decided June 11, 2015

SOLOMON, J., writing for a unanimous Court.

In this appeal, the Court considers whether the Workers’ Compensation Act (Compensation Act) divests
the Superior Court of jurisdiction to adjudicate the issue of a worker’s employment status once a defendant raises
the exclusive remedy provision of the Compensation Act as an affirmative defense. The Court also considers
whether, in the circumstances presented here, the jury charge was so deficient as to require reversal.

In September 2008, after defendant’s daughter decided he needed a live-in assistant, she and defendant met
with decedent. Decedent agreed to move in with defendant and to work seven days a week in exchange for $100 per
day. Decedent’s duties included preparing three meals a day for defendant, doing laundry, housekeeping, and
accompanying him on errands. Neither of the parties prepared any documentation, nor did they discuss the duration
of the arrangement. A month after decedent began working for defendant, he asked her to accompany him to a
diner. When they arrived, defendant pulled over and let decedent out of his car. While attempting to park,
defendant accidentally drove onto the sidewalk where decedent was standing and pinned her against the wall,
severing her leg. Decedent died shortly thereafter from her injuries. Petitioner, the administrator of decedent’s
estate, filed a wrongful death action against defendant. Defendant conceded his negligence, but asserted that
decedent was his employee and that, therefore, petitioner was entitled to recovery only under the Compensation Act.

Defendant moved to dismiss the complaint and to transfer the matter to the Division of Workers’
Compensation (Division), arguing that the Superior Court lacked jurisdiction to resolve the dispute. The trial court
denied the motion. After discovery, defendant filed a motion for summary judgment raising the same argument.
The court rejected defendant’s argument and denied the motion and subsequent motion for reconsideration. Because
defendant conceded negligence, the sole contention at trial was the nature of decedent’s economic relationship with
defendant. At trial, the judge instructed the jury that it would need to decide by a preponderance of the evidence
whether decedent was an employee or an independent contractor and explained the factors that it should consider in
reaching that conclusion. The judge also informed the jury that it should give whatever weight it deemed
appropriate to the facts. The jury returned a verdict in favor of petitioner, found that decedent was an independent
contractor and awarded decedent’s estate a total of $525,000 in damages.

Defendant appealed and, in a published opinion, the Appellate Division reversed. Estate of Kotsovska v.
Liebman, 433 N.J. Super. 537, 541 (App. Div. 2013). Relying on this Court’s decisions in Kristiansen v. Morgan,
153 N.J. 298 (1998), and Wunschel v. City of Jersey City, 96 N.J. 651 (1984), the panel concluded that the Division
had primary jurisdiction over the dispute regarding decedent’s employment status. The panel rejected defendant’s
challenges to the damages award, reversed the judgment on liability only, and remanded the matter to the Division
for a determination of decedent’s employment status. This Court granted plaintiff’s petition for certification. 217
N.J. 587 (2014).

HELD: When there is a genuine dispute regarding a worker’s employment status, and the plaintiff elects to file a
complaint only in the Superior Court Law Division, the Superior Court has concurrent jurisdiction to resolve the
dispute.

1. Under the Compensation Act, when an employer and employee have, by express or implied agreement, accepted
the provisions thereof, employers must compensate employees for work-related injuries arising out of and in the
course of employment without regard to the negligence of the employer. N.J.S.A. 34:15-7. This provision is
intended to ensure that workers’ compensation provides the exclusive remedy for employees who sustain work-
related injuries. The Compensation Act defines an employee as a natural person who performs a service for an
employer for financial consideration. Independent contractors, which are not addressed in the Compensation Act,
are neither entitled to benefits nor subject to the limitations of the Compensation Act. Accordingly, parties cannot
be presumed to have accepted the provisions of the Compensation Act until a determination is made as to whether
the worker was an employee or an independent contractor. (pp. 13-18)

2. The Division has exclusive original jurisdiction of all claims for workers’ compensation benefits under this
chapter. N.J.S.A. 34:15-49(a). The Superior Court should resist the assertion of jurisdiction in cases where it is
evident the matter should be tried elsewhere, but where there is a genuine question of jurisdiction, this Court
perceives no statutory injunction against the trial of that issue in either forum. In contrast to the cases relied upon by
defendant and the Appellate Division, here there was a genuine dispute regarding decedent’s employment status.
Petitioner has never suggested that decedent was defendant’s employee, and in fact maintained that decedent was an
independent contractor after defendant raised the exclusive remedy defense under N.J.S.A. 34:15-8. Moreover,
petitioner did not file a petition for workers’ compensation with the Division. Thus, there was no claim pending
before the Division over which it could assert jurisdiction. The Court, therefore, concludes that the Superior Court
had jurisdiction to decide the question of decedent’s employment status. (pp. 18-20)

3. Having determined the Superior Court had jurisdiction, the Court considers whether the trial court erred in
declining to transfer plaintiff’s claim to the Division under the doctrine of primary jurisdiction. The decision to
invoke the doctrine of primary jurisdiction rests within the sound discretion of the trial court and should not be
disturbed on appeal unless the decision was made without a rational explication, inexplicably departed from
established practices, or rested on an impermissible basis. The trial court did not abuse its discretion in declining to
dismiss the matter pending a determination by the Division of decedent’s employment status. The forum best suited
to decide employment issues is the Compensation Court, but it is in no better position to make the threshold
determination of a worker’s employment status than the Superior Court. (pp. 20-22)

4. The Court disagrees with the Appellate Division’s conclusion that Wunschel and Kristiansen compel a different
conclusion. In both Wunschel and Kristiansen, the plaintiffs filed workers’ compensation petitions, thereby
acknowledging that the decedents were employees rather than independent contractors. Here, however, petitioner
elected to file only a wrongful death action in the Superior Court, and decedent’s employment status is vigorously
disputed. While the sole issue in dispute here is an employment issue, that issue falls well within the knowledge of
the Superior Court. Accordingly, this Court rejects the Appellate Division’s finding that the Division had primary
jurisdiction over the question of decedent’s employment status. (pp. 23-25)

5. Further, in the context of the jury charge at issue here, the Court notes that the first step in assessing the sufficiency
of a contested jury charge requires an understanding of the legal principles pertinent to the jury’s determination. Our
courts have utilized two different but related tests to distinguish employees from independent contractors: (1) the
control test, which is grounded in the common law master-servant relationship; and (2) the relative nature of the work
test, which is used in various situations in which the control test does not emerge as the dispositive factor. Under the
control test, the factfinder considers the extent of the employer’s right to control the work of the employee. By
contrast, the relative nature of the work test requires a court to examine the extent of the economic dependence of the
worker upon the business he serves and the relationship of the nature of his work to the operation of that business.
The Court has previously held that when social legislation must be applied in the setting of a professional person or
an individual otherwise providing specialized services allegedly as an independent contractor, the trial court should
consider: (1) employer control; (2) the worker’s economic dependence on the work relationship; and (3) the degree to
which there has been a functional integration of the employer’s business with that of the person doing the work at
issue. In assessing these factors, we approved of the hybrid test established by the Appellate Division in Pukowsky
v. Caruso, 312 N.J. Super. 171, 182-83 (App. Div. 1998). The Court hold that the test for determining those aspects
of a non-traditional work relationship set out in Pukowsky applies in the context of a dispute over the applicability of
the Compensation Statute. (pp. 25-31)

6. Next, the Court considers whether the jury charge here, which followed Model Jury Charge (Civil) § 5.10I(A),
warranted reversal. Here, the model charge was applied to aid the jury in its determination of decedent’s employment
status in the context of social legislation. Because the charge given here was used in a context different from the
specific purpose for which the charge was adopted, the presumption of propriety that attaches to a trial court’s reliance
on the model jury charge does not apply. A comparison between Model Jury Charge (Civil) § 5.10I(A) and the hybrid
approach shows that the trial court did not instruct the jury as to each factor. Nevertheless, to the extent such omissions

2
were error, under the unusual facts of this case, the charge was not so erroneous as to require reversal. (pp. 31-33)

7. Here, decedent entered into a loosely defined service contract, which was made terminable at will by either party.
Decedent, who was not a caretaker by trade, had no social security number, and was not permitted under the terms of
her visa to work in this country, agreed to provide general services on an as-needed basis, and retained the discretion
to determine the parameters of that service. The trial judge informed the jury that it is not important whether or not
defendant ever exercised control, but rather the extent to which the right to control existed. The jury charge failed to
instruct the jury with regard to the importance of whether decedent’s employment was supervised or unsupervised.
However, the record indicates that, apart from defendant’s daughter occasionally checking in on decedent and her
father, decedent’s work was entirely unsupervised. The jury charge also failed to instruct the jury on the importance
of whether there was an annual leave policy, whether decedent accrued retirement benefits, and whether defendant
paid social security taxes. However, each of these factors suggested that decedent was an independent contractor: no
retirement benefits were contemplated, defendant paid no social security taxes, and there was no indication of an
annual leave policy. Although the charge could have been more artfully drafted, it did not misinform the jury as to
the controlling law and was neither ambiguous nor misleading To the extent that it omitted relevant factors for
consideration under the approach the Court now endorses, those factors inured to the benefit of petitioner, and
therefore did not result in prejudice to defendant. As such, the Court concludes that the charge, though flawed, does
not warrant reversal. (pp. 33-38)

The judgment of the Appellate Division is REVERSED. The verdict of the jury is REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON and
FERNANDEZ-VINA join in JUSTICE SOLOMON’S opinion. JUDGE CUFF (temporarily assigned) did not
participate.

3
 SUPREME COURT OF NEW JERSEY
A-89 September Term 2013
073861

ESTATE OF MYROSLAVA
KOTSOVSKA, by OLENA
KOTSOVSKA, Administratrix,

Plaintiff-Appellant,

v.

SAUL LIEBMAN,

Defendant-Respondent.

Argued March 16, 2015 – Decided June 11, 2015

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 433 N.J. Super. 537 (App. Div.
2013).

Gerald D. Wixted argued the cause for
appellant (Smith, Stratton, Wise, Heher &
Brennan, attorneys).

Robert F. Cox argued the cause for
respondent (McCreedy & Cox, attorneys).

JUSTICE SOLOMON delivered the opinion of the Court.

This case arises from the tragic death of Myroslava

Kotsovska (decedent), who was fatally injured when defendant

Saul Liebman, for whom decedent worked as a caretaker,

inadvertently struck her with his car. Petitioner Olena

Kotsovska, as administratrix of decedent’s estate, filed a

wrongful death action against Liebman.

1
 Liebman did not dispute that decedent’s injuries were the

result of Liebman’s negligence. Instead, Liebman argued that,

because decedent was his employee, petitioner could recover only

under the Workers’ Compensation Act (Compensation Act), N.J.S.A.

34:15-1 to -142. If, as Liebman asserts, decedent was his

employee, under the Compensation Act petitioner is required to

file a workers’ compensation petition with the Division of

Workers’ Compensation (Division) and may not recover for

decedent’s work-related injuries in tort. Conversely, if

decedent was an independent contractor, as petitioner asserts,

the Compensation Act does not apply and petitioner properly

filed a claim against Liebman in the Superior Court.

In this appeal, we are called upon to determine whether the

Compensation Act divests the Superior Court of jurisdiction to

adjudicate the issue of a worker’s employment status once a

defendant raises as an affirmative defense the exclusive remedy

provision of the Compensation Act, N.J.S.A. 34:15-8. Although

the Superior Court determined that it had jurisdiction to

adjudicate the issue of decedent’s employment status, the

Appellate Division found that the doctrine of primary

jurisdiction required the trial judge to transfer the matter to

the Division as soon as the workers’ compensation defense was

raised. We conclude that when, as here, there is a genuine

dispute regarding the worker’s employment status, and the

2
plaintiff elects to file a complaint only in the Law Division of

the Superior Court, the Superior Court has concurrent

jurisdiction to resolve the dispute.

We must also determine whether, as the Appellate Division

found, the jury charge given was so deficient that reversal was

required. This Court in D’Annunzio v. Prudential Insurance Co.

of America, 192 N.J. 110, 122-24 (2007), adopted a framework for

assessing a worker’s employment status in the context of social

legislation. We now endorse that framework for use in

ascertaining a worker’s employment status for purposes of

determining whether the Compensation Act’s exclusive remedy

provision applies. Although the jury charge given here did not

fully reflect the considerations set forth in D’Annunzio, the

factors omitted either inured to the benefit of petitioner or

were irrelevant under the facts of this case. Thus, we cannot

conclude that the jury instruction had the capacity to confuse

or mislead the jury.

Consequently, we reverse the judgment of the Appellate

Division and reinstate the jury’s verdict.

I.

The undisputed facts of this case are briefly summarized as

follows. In September 2008, Liebman’s daughter Robin Ross

decided that Liebman, then eighty-nine years old and living

alone, was in need of a live-in assistant. Ross inquired among

3
her friends for a suitable candidate, and was introduced to

decedent through a mutual acquaintance.

Decedent met with Ross and Liebman. Because decedent was

not proficient in English, her son-in-law Oleh Baran accompanied

decedent and served as a translator. Decedent agreed to move in

with Liebman and work seven days a week in exchange for $100 per

day, to be paid in cash. The parties agreed to pay decedent in

cash because decedent did not have a social security number or a

bank account, and therefore could not cash a check. Decedent’s

duties included preparing three meals a day for Liebman, doing

Liebman’s laundry, performing “light housekeeping” duties “as

needed,” accompanying Liebman on errands, and assisting Liebman

generally in “getting around.”

No documentation regarding the work agreement was prepared,

exchanged, or requested. The parties did not discuss the

duration of the arrangement; nor did they discuss decedent’s

immigration status or whether she was authorized to work in the

United States.1 The parties agreed that decedent would have some

vacation time around the holidays, but did not discuss how long

the vacation time would be or if the vacation time would be

paid. Ross asked if decedent had health insurance, to which

1 According to Olena Kotsovska, decedent’s visa did not authorize
her to work in the United States. Olena testified that she did
not inform Ross or Liebman of this fact because they “didn’t ask
those questions.”
4
Baran replied that he and Olena would take care of decedent’s

medical bills “personally” if the need arose.

Decedent started work immediately. Ross testified that she

“checked in” on decedent “occasionally,” and that it was her

understanding that decedent had “a lot of independence” in how

she chose to perform her duties and when to take time off.

According to Ross, either party was free to terminate the

arrangement at any time.

Little more than one month after decedent began working for

Liebman, Liebman asked decedent to accompany him to a diner

because he needed help with errands. As they arrived at the

diner, Liebman pulled over and let decedent out of his car.

While attempting to park, Liebman accidentally drove over the

curb onto the sidewalk where decedent was standing and pinned

decedent against the wall of the diner, severing her leg below

the knee. Decedent died shortly thereafter from her injuries.

Petitioner filed a wrongful death action against Liebman,

alleging that decedent’s death was the result of Liebman’s

negligence. Liebman conceded negligence, but asserted that

decedent was his employee and that, therefore, petitioner was

entitled to recovery only under the Compensation Act.

Liebman filed a motion to dismiss the complaint and to

transfer the matter to the Division, arguing that the Superior

Court lacked jurisdiction to resolve employment status disputes

5
for purposes of determining whether the Compensation Act’s

exclusive remedy provision, N.J.S.A. 34:15-8, applies. The

trial court denied the motion. After discovery concluded,

Liebman filed a motion for summary judgment raising the same

argument. Noting that plaintiff had not filed a workers’

compensation petition and that therefore “there’s nothing

pending there for [the Division] to make a decision,” the court

rejected defendant’s argument and denied the motion and

subsequent motion for reconsideration. Because Liebman conceded

negligence, the sole contention at trial was the nature of

decedent’s economic relationship with Liebman.

After five days of trial, the judge instructed the jury

that it would need to decide by a preponderance of the evidence

whether decedent was an employee or an independent contractor.

The judge defined “employee” as “a person engaged to perform

services for another, the employer, and who is subject to the

employer’s control or right to control the physical conduct

required to perform such services.” The judge then defined

“independent contractor” as

a person who in carrying on an independent
business contracts, independent from the
employer, . . . to do a piece of work according
to h[er] own methods without being subject to
the control of the employer as to the means by
which the result is to be accomplished but
only as to the result of the work.

6
 Next, the judge explained that “there are a number of

factors” to consider in determining whether decedent was an

employee or an independent contractor:

The first factor and probably the most
important factor is the extent of control the
person for whom the services are performed has
the right to . . . exercise over the details
of the services performed. If the worker is
only subject to the general control and
direction of the employer, then the worker is
more likely to be an independent contractor.

It is not important whether or not [Liebman]
in this case actually ever exercised control
but rather the extent to which the right to
control existed. The more the control, the
more likely an employer/employee relationship
exists. The less . . . control, the less
likely an employer/employee relationship
exists.

Another factor you can consider is whether the
parties believed they’re [sic] in a
relationship of employer/employee and number
three, the extent of the skill required in the
performance of the services. Number four, the
length of time anticipated for the performance
of the services. Number five, hiring, payment
of regularly weekly sum, provision of tools,
supplies of a workplace and being terminable
at will are factors that weigh in favor of the
employer/employee relationship. Lack of
payroll deductions, payment in cash are
factors that weigh against the
employer/employee relationship. Such other
factors as may be reasonably considered [to]
determine whether [Liebman] controlled or had
the right to control [decedent] in the
performance of her services provided.

. . . .

The conduct of the parties after they entered
into the relationship may be significant

7
 evidence about what they believed the
relationship to be.

The judge explained that the jury should consider the “quality

of the factors” rather than the “quantity of factors” in

considering whether decedent was an employee or an independent

contractor, and that it was up to the jury to “give whatever

weight you deem appropriate to the fact[s] as you find to exist

to reach your decision[.]”

The jury returned a verdict in favor of petitioner, finding

that decedent was an independent contractor and awarding

decedent’s estate a total of $525,000 in damages. The trial

court denied Liebman’s motion for a new trial, and Liebman filed

a timely notice of appeal.

The Appellate Division reversed in a published opinion.

Estate of Kotsovska v. Liebman, 433 N.J. Super. 537, 541 (App.

Div. 2013). Relying on this Court’s decisions in Kristiansen v.

Morgan, 153 N.J. 298 (1998), and Wunschel v. City of Jersey

City, 96 N.J. 651 (1984), the panel concluded that the Division

had primary jurisdiction over the dispute regarding decedent’s

employment status “‘by virtue of its statutory status,

administrative competence and regulatory expertise.’” Liebman,

supra, 433 N.J. Super. at 543-44 (quoting Wunschel, supra, 96

N.J. at 664). Although the panel determined that the matter

“should have been transferred to the Division for a

8
determination of decedent’s employment status,” it held that

this error alone did not warrant reversal because the Superior

Court has concurrent jurisdiction to decide employment issues.

Id. at 543, 547.

Nevertheless, the panel reversed, finding the jury charge

addressing the distinctions between employees and independent

contractors “was clearly capable of producing an unjust result.”

Id. at 547, 549. Observing that New Jersey courts have

increasingly relied upon the “relative nature of the work” test

in compensation cases, the panel determined that the jury charge

should have accounted for the factors relevant to that test.

Id. at 547-48. Specifically, the panel determined that

decedent’s economic dependence upon Liebman was “highly relevant

here as decedent would appear to have been entirely economically

dependent on Liebman.” Id. at 548. The panel also stated that

including in the charge the method of payment and lack of

payroll deductions as factors weighing against a finding of an

employee-employer relationship, without more explanation, “was

incomplete and misleading” because of the reduced importance

accorded to those factors in previous cases. Id. at 548-59.

The panel rejected Liebman’s challenges to the damages

award and “reverse[d] the judgment on liability only,” remanding

the matter to the Division for a determination of decedent’s

employment status. Id. at 551.

9
 We granted plaintiff’s petition for certification. 217

N.J. 587 (2014).

II.

A.

Addressing the Appellate Division’s determination that the

matter should have been transferred to the Division, petitioner

argues that the panel’s decision runs contrary to established

litigation practice and finds no support in either the language

of the Compensation Act or this State’s jurisprudence. Citing

one published Appellate Division case and numerous unpublished

Appellate Division cases, petitioner asserts that the Superior

Court “has long been understood” to have jurisdiction over the

issue of a worker’s employment status for purposes of

determining whether plaintiff’s exclusive remedy is under the

Compensation Act.

Petitioner acknowledges this Court’s holdings in Wunschel

and Kristiansen that the Division has expertise in employment

matters and primary jurisdiction over compensability disputes

under the Compensation Act. However, petitioner argues that

Wunschel and Kristiansen are inapposite because, in those cases,

it was undisputed that the workers were employees. By contrast,

here petitioner did not file a workers’ compensation petition

and has maintained that decedent was an independent contractor

rather than an employee.

10
 Petitioner acknowledges that the Compensation Act confers

exclusive original jurisdiction upon the Division over claims

arising from an employee-employer relationship, N.J.S.A. 34:15-

49(a). However, petitioner argues, the statute does not confer

jurisdiction upon the Division to determine the threshold

question of a worker’s employment status. Rather, the

Compensation Act applies only to those who have accepted the

statute’s provisions by entering into an employee-employer

relationship. See N.J.S.A. 34:15-7, -8. Thus, petitioner

asserts, the appellate panel’s decision improperly expanded the

Division’s limited jurisdiction under the Compensation Act to

include the resolution of disputes regarding a worker’s consent

to the provisions of the statute.

Addressing the appellate panel’s finding that the jury

charge constituted plain error, petitioner notes that the trial

court’s instruction followed the Model Jury Charge on Agency,

Model Jury Charge (Civil) § 5.10I(A), “Employer/Employee”

(Revised 2011). According to petitioner, this jury charge

substantially incorporated factors relevant to the nature of the

work. Nevertheless, petitioner acknowledges that clarification

of the charge may be warranted.

B.

Regarding the trial court’s denial of his motion to

transfer petitioner’s claim to the Division, Liebman relies on

11
N.J.S.A. 34:15-9, which states that every employment contract

“shall be presumed to have been made with reference to the

provisions” of the Act. Based on this provision, Liebman argues

that, because decedent entered into a verbal employment contract

with Liebman and failed to exempt herself from the Compensation

Act, the Division had primary jurisdiction to adjudicate the

matter.

Liebman contends that the appellate panel’s decision

follows and clarifies our decisions in Wunschel and Kristiansen,

which he asserts were premised on the notion that a controversy

should be decided in the forum best suited to adjudicate the

matter. Liebman posits that the threshold issue of a

plaintiff’s employment status is an employment matter, and that

therefore under Wunschel and Kristiansen the issue should have

been decided by the Division, the agency with the regulatory

expertise necessary to address this complex employment question.

Regarding the jury charge, Liebman contends that Model Jury

Charge (Civil) 5.10(I) was designed to instruct the jury on the

issue of respondeat superior rather than to address disputes

over a worker’s employment status in the context of the

Compensation Act. Liebman also asserts that the Appellate

12
Division properly determined that the jury charge given here

suffered from a number of deficiencies that required reversal.2

III.

Although not the basis for the Appellate Division’s

disposition, we begin by addressing the panel’s conclusion that

the Division had primary jurisdiction to decide the threshold

issue of decedent’s employment status. In determining whether

the Division has such jurisdiction, “we must be faithful to the

legislative goals of the workers’ compensation system.”

Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 173

(1985). We therefore briefly review the Compensation Act and

interpretive case law to provide the context necessary for our

analysis.

A.

The legislature enacted the Compensation Act in 1911, L.

1911, c. 95, to address the variety of difficulties workers

encountered in attempting to recover in tort against their

employers for work-related injuries. See Millison, supra, 101

N.J. at 174 (citing W. Prosser & W. Keeton, The Law of Torts, §

2The Appellate Division did not consider Liebman’s additional
arguments here that the charge was erroneous because it
improperly applied the term “employer” to both the employee and
independent contractor contexts and never advised the jury on
how independent contractors were paid. We find no merit to
either argument.
13
80 at 569 (5th ed. 1984)).3 The legislature sought to accomplish

this by “establish[ing] a no fault system of compensation for

workers who are injured or contract a disease in the course of

employment.” Fitzgerald v. Tom Coddington Stables, 186 N.J. 21,

31 (2006) (quoting Brock v. Pub. Serv. Elec. & Gas Co., 325 N.J.

Super. 582, 588 (App. Div. 1999), certif. denied, 163 N.J. 77

(2000)) (internal quotation marks omitted). Thus, the

Compensation Act provides employees who have sustained work-

related injuries medical treatment and limited compensation

“without regard to the negligence of the employer.” N.J.S.A.

34:15-7; see also Stancil v. Ace USA, 211 N.J. 276, 296 (2012)

(Albin, J., dissenting). “In essence, the [Compensation] Act is

a social compact, ‘an historic trade-off whereby employees

relinquish their right to pursue common-law remedies in exchange

for prompt and automatic entitlement to benefits for work-

related injuries.’” Stancil, supra, 211 N.J. at 296 (Albin, J.,

dissenting) (quoting Charles Beseler Co. v. O’Gorman & Young,

3Prior to enactment of the Compensation Act, employer liability
was greatly minimized by “the ‘unholy trinity’ of employer
defenses -- contributory negligence, assumption of risk, and the
fellow servant rule -- which served to protect the employer from
legal liability even though he had failed in his duty as master
to protect his servants.” Ibid. Further, as Professor Larson
observed, an injured worker faced significant difficulties in
getting “the usual witnesses of the accident, usually
coemployees” to testify against their employers. 3 Arthur
Larson & Lex K. Larson, Larson’s Workers’ Compensation Law §
2.03 (2006).
14
Inc., 188 N.J. 542, 546 (2006)); see also Tlumac v. High Bridge

Stone, 187 N.J. 567, 573 (2006) (noting “the remedial purpose of

the Workers’ Compensation Act” is “to make benefits readily and

broadly available to injured workers through a non-complicated

process”).

“[W]e have long recognized that this system for the

compensation of injured workers is ‘remedial social legislation

and should be given liberal construction in order that its

beneficent purposes may be accomplished.’” Cruz v. Cent. Jersey

Landscaping, Inc., 195 N.J. 33, 42 (2008) (quoting Torres v.

Trenton Times Newspaper, 64 N.J. 458, 461 (1974)). Thus, the

statute is broadly construed in favor of coverage.

B.

Mindful of the legislative purpose and goals of the

Compensation Act, we turn to the language of the statute. Under

the Compensation Act, “[w]hen employer and employee shall by

agreement, either express or implied . . . accept the provisions

of” the Compensation Act, employers shall compensate employees

for work-related injuries “arising out of and in the course of

employment . . . without regard to the negligence of the

employer[.]” N.J.S.A. 34:15-7 (emphasis added). Absent an

express disclaimer to the contrary, all parties to every

employment contract made after July 1911 are “presumed [to] have

15
accepted the provisions of [the Compensation Act] and have

agreed to be bound thereby[.]” N.J.S.A. 34:15-9.

Once the employment contract is created and the employee-

employer relationship is established,

[s]uch agreement shall be a surrender by the
parties thereto of their rights to any other
method, form or amount of compensation or
determination thereof than as provided in this
article and an acceptance of all the
provisions of this article, and shall bind the
employee and for compensation for the
employee’s death shall bind the employee’s
personal representatives.

[N.J.S.A. 34:15-8.]

This provision is intended to ensure that workers’

compensation provides the exclusive remedy for employees who

sustain work-related injuries. Wunschel, supra, 96 N.J. at 659.

As a result, “although ‘the employer assumes an absolute

liability[,] [h]e gains immunity from common-law suit, even

though he be negligent, and is left with a limited and

determined liability in all cases of work-connected injury.’”

Whitfield v. Bonanno Real Estate Grp., 419 N.J. Super. 547, 553

(App. Div. 2011) (alterations in original) (quoting Dudley v.

Victor Lynn Lines, Inc., 32 N.J. 479, 489 (1960)); see also

Toland v. Atl. Gahagan Joint Venture Dredge, No. 1, 57 N.J. 205,

207 (1970) (“The elective provisions of [N.J.S.A. 34:15-8] were

16
only intended to deny employees their traditional common law

tort remedies.”).4

“[A]scrib[ing] to the statutory words their ordinary

meaning and significance,” DiProspero v. Penn, 183 N.J. 477, 492

(2005) (citations omitted), it is clear that the benefits and

the limitations of the Compensation Act apply only to

“employees” who, by virtue of their employment agreements, have

accepted its provisions. The Compensation Act defines the term

“employee” as “synonymous with servant,” to “include[] all

natural persons, including officers of corporations, who perform

a service for an employer for financial consideration[.]”

N.J.S.A. 34:15-36.5 By contrast, independent contractors, which

are not addressed in the Compensation Act, are neither entitled

4 The New Jersey workers’ compensation scheme also allows either
the employer or the employee to elect to “reject the ordinary
system of compensatory non-fault liability,” known as “Article
II coverage,” in favor of “Article I coverage” under N.J.S.A.
34:15-1 to -7. Naseef v. Cord, Inc., 48 N.J. 317, 322 (1966).
Article I coverage provides that the employee may recover
against the employer under common-law negligence, and that “the
employee’s claim may not be defeated by the defenses of ordinary
contributory negligence (see N.J.S.A. 34:15-1), assumption of
risk (see N.J.S.A. 34:15-2; McGrath v. American Cyanamid Co., 41
N.J. 272 (1963)), or negligence of a fellow-employee (see
N.J.S.A. 34:15-2).” Ibid.

5This provision contains exemptions for “(1) employees eligible
under the federal ‘Longshore and Harbor Workers’ Compensation
Act,’ for benefits payable with respect to accidental death or
injury, or occupational disease or infection; and (2) casual
employments.” Ibid. (citations omitted). Neither exemption
applies here.
17
to benefits nor subject to the limitations of the Compensation

Act. Auletta v. Bergen Ctr. for Child Dev., 338 N.J. Super.

464, 471 (App. Div.), certif. denied, 169 N.J. 611 (2001). As

our courts have explained, 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 accomplished, but only as to the result of work.’”

Ibid. (quoting Lesniewski v. W.B. Furze Corp., 308 N.J. Super.

270, 280 (App. Div. 1998)).

Accordingly, parties cannot be presumed to have accepted

the provisions of the Compensation Act, including the exclusive

remedy provision, until a threshold determination is made as to

whether the worker was an employee or an independent contractor.

With these concepts in mind, we now turn to the question of

whether the Superior Court has jurisdiction to make this

threshold determination.

IV.

A.

As Liebman notes, the Division has “the exclusive original

jurisdiction of all claims for workers’ compensation benefits

under this chapter.” N.J.S.A. 34:15-49(a). Certainly, the

Superior Court “should be steadfast in [its] readiness to resist

the assertion of jurisdiction in cases where it is evident the

18
matter should be tried elsewhere.” Singer Shop-Rite, Inc. v.

Rangel, 174 N.J. Super. 442, 447 (App. Div.), certif. denied, 85

N.J. 148 (1980). On the other hand, “[w]here a genuine question

of jurisdiction, exclusive, primary or concurrent, is involved

we perceive no statutory injunction against the trial of that

issue in either forum[.]” Id. at 446. Indeed, as one

commentator has observed, “[d]espite the exclusivity of the

workers’ compensation remedy, the Superior Court has

jurisdiction to determine the existence of the employment

relationship and such other employment issues as are raised by

way of defense to the employee’s tort action.” Pressler &

Verniero, Current N.J. Court Rules, comment 42.1 on R. 4:5-4 at

1414 (2014).

In contrast to the cases relied upon by Liebman and the

Appellate Division, here there was a genuine dispute regarding

decedent’s employment status. Petitioner has never suggested

that decedent was Liebman’s employee, and in fact maintained

that decedent was an independent contractor after Liebman raised

the exclusive remedy defense under N.J.S.A. 34:15-8. Moreover,

petitioner did not file a petition for workers’ compensation

with the Division. Thus, as the trial court noted, there was no

claim pending before the Division over which it could assert

jurisdiction. Under these circumstances, we conclude that the

19
Superior Court had jurisdiction to decide the question of

decedent’s employment status.

B.

Having determined the Superior Court had jurisdiction, we

next consider whether, as the Appellate Division found, the

trial court erred in declining to transfer plaintiff’s claim to

the Division under the doctrine of primary jurisdiction. “The

doctrine of primary jurisdiction is applicable when a case is

properly filed in the Superior Court but the court declines

original jurisdiction, referring specific issues to the

appropriate administrative body.” Magic Petroleum Corp. v.

Exxon Mobil Corp., 218 N.J. 390, 405 (2014). Thus, “when

enforcement of a claim requires resolution of an issue within

the special competence of an administrative agency, a court may

defer to a decision of that agency.” Campione v. Adamar, Inc.,

155 N.J. 245, 263-64 (1998).

“The decision to invoke the doctrine of primary

jurisdiction rests within the sound discretion of the [trial]

court.” Nordstrom v. Lyon, 424 N.J. Super. 80, 99 (App. Div.

2012). Accordingly, the trial court’s decision here should not

be disturbed on appeal unless the decision was “made without a

rational explication, inexplicably departed from established

practices, or rested on an impermissible basis.” Flagg v. Essex

20
Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation and

internal quotation marks omitted).

“Although no formula exists to evaluate the applicability

of primary jurisdiction,” we recently stated that “our courts

have been guided by a four-part test,” in which the following

factors are considered:

1) whether the matter at issue is within the
conventional experience of judges; 2) whether
the matter is peculiarly within the agency’s
discretion, or requires agency expertise; 3)
whether inconsistent rulings might pose a
danger of disrupting the statutory scheme; and
4) whether prior application has been made to
the agency.

[Magic Petroleum Corp., supra, 218 N.J. at 407
(quoting Boldt v. Correspondence Mgmt., Inc.,
320 N.J. Super. 74, 85, (App. Div. 1999).]

Applying these factors to the facts before us, we conclude that

the trial court did not abuse its discretion in declining to

dismiss the matter pending a determination by the Division of

decedent’s employment status.

First, the question of a worker’s employment status is a

matter that is often determined by trial judges and juries.

See, e.g., Re/Max of N.J. v. Wausau Ins. Cos., 162 N.J. 282, 286

(2000) (affirming Chancery Division’s determination of real

estate agents as “employees” under Compensation Act); see also

Hargrove v. Sleepy’s, LLC, 220 N.J. 289, 295 (2015) (addressing

test for a plaintiff’s employment status for purposes of Wage

Payment Law and Wage and Hour Law); D’Annunzio, supra, 192 N.J.
21
at 120-25 (reaffirming criteria for trial court’s determination

of plaintiff’s employment status in claims arising under

Conscientious Employee Protection Act); Pukowsky v. Caruso, 312

N.J. Super. 171, 180-83 (App. Div. 1998) (addressing trial

court’s determination of a plaintiff’s employment status in the

context of the Law Against Discrimination). Indeed, as

Professor Larson has observed, in addition to workers’

compensation, “[t]he definition of the term ‘employee’ for

purposes of vicarious liability, employers’ liability, . . .

labor legislation, unemployment compensation, social security

and miscellaneous enactments applicable to employees, has

probably produced more reported cases than any definition of

status in the modern history of law.” 3 Larson, supra, § 60.01.

Second, while we acknowledge that “[t]he forum best suited

to decide employment issues is the Compensation Court,”

Wunschel, supra, 90 N.J. at 664, the Compensation Court is in no

better position to make the threshold determination of a

worker’s employment status than the Superior Court. As

discussed above, the Superior Court is often tasked with making

this determination in a variety of contexts. Thus, this

determination is not “peculiarly within the agency’s

discretion,” or one which “requires agency expertise,” Boldt,

supra, 320 N.J. Super. at 85.

22
 Third, there is no risk of inconsistent rulings because

petitioner declined to file a petition with the Division.

Consequently, we find the doctrine of primary jurisdiction does

not apply to the facts of this case.

C.

Turning to the Appellate Division’s reliance on our

precedent, we disagree that Wunschel and Kristiansen compel a

different conclusion. In Wunschel, supra, the decedent-

employee, a police officer, arranged to have Sachs, his partner

in the Jersey City Police Department, pick him up for work after

completing a shift at a second job. 96 N.J. at 655. When Sachs

arrived to pick up Wunschel, Sachs accidentally shot and killed

Wunschel. Id. at 656. Wunschel’s widow filed a workers’

compensation petition with the Division naming both employers,

and a wrongful death complaint in the Superior Court naming both

employers and Sachs. Ibid.

The Division determined that Wunschel’s death occurred

during the course of his employment with the second employer,

while the jury determined that Wunschel’s death arose during the

course of his employment with the police department. Id. at

657. Thus, we were presented in that case with a situation in

which the Division and the Superior Court reached opposite

conclusions. Id. at 657-58. Noting that “[a]voiding

inconsistent results and duplication of litigation is an aim of

23
our law,” we held that “[t]he forum best suited to decide

employment issues is the Compensation Court.” Id. at 664.

In Kristiansen, supra, a bridge worker was struck and

killed by a car after his shift had ended while on his way to an

off-site parking lot. 153 N.J. at 302-04. As in Wunschel, the

decedent’s widow filed a workers’ compensation petition with the

Division and a wrongful death action in the Superior Court, and

the key issue was whether the employee-decedent was injured

during the course of his employment. Id. at 304, 306-07. In

addressing the employer’s argument that the Division had primary

jurisdiction to decide whether the decedent’s injuries were

compensable, we noted that, “[u]nlike the Wunschel case in which

a fellow servant was sued in the Superior Court, here, no issue

has been raised that the Division cannot decide in a manner that

is binding on all the interested parties.” Id. at 311.

Because, unlike in Wunschel, the Division had jurisdiction over

the parties necessary to determine compensability, we determined

that “the Division and not the Superior Court should have

decided the compensability issues.” Id. at 311, 313.

The distinctions between these cases and the case presently

before us are significant. In both Wunschel and Kristiansen,

the plaintiffs filed workers’ compensation petitions, thereby

acknowledging that the decedents were employees rather than

independent contractors. Here, by contrast, petitioner elected

24
to file only a wrongful death action in the Superior Court, and

decedent’s employment status is vigorously disputed. Unlike in

Wunschel and Kristiansen, where the only issue raised was

compensability, no compensability arguments have been raised

here. While the sole issue in dispute here -- decedent’s

employment status -- is an employment issue, that issue falls

well within the ken of the Superior Court. Thus, we cannot

agree that the trial court was required to abstain from

resolving a question that is so often before it.

Accordingly, we reject the Appellate Division’s finding

that the Division had primary jurisdiction over the question of

decedent’s employment status.

V.

A.

We turn next to the Appellate Division’s conclusion with

respect to the jury charge. Preliminarily, we note that “[a]

jury is entitled to an explanation of the applicable legal

principles and how they are to be applied in light of the

parties’ contentions and the evidence produced in the case.”

Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002) (citations

and internal quotation marks omitted). Thus, a proper “jury

charge must correctly state the applicable law, outline the

jury’s function and be clear in how the jury should apply the

legal principles charged to the facts of the case at hand.”

25
Ibid. To accomplish these goals, the jury charge should be

tailored to the specific facts of the case. Reynolds v.

Gonzalez, 172 N.J. 266, 289 (2002).

When a party objects to the jury charge at trial, the

“reviewing court should reverse on the basis of that challenged

error unless the error is harmless.” Toto v. Ensuar, 196 N.J.

134, 144 (2008) (citing R. 2:10-2). An error is harmful only

where that error is “clearly capable of producing an unjust

result.” R. 2:10-2. When presented with a contested jury

charge, “a court must examine the charge as a whole, rather than

focus on individual errors in isolation.” Ibid.

B.

The first step in assessing the sufficiency of a contested

jury charge, then, requires an understanding of the legal

principles pertinent to the jury’s determination. Our courts

have utilized two different but related tests to distinguish

employees from independent contractors: (1) the “control test,”

which “is grounded in the common law master-servant

relationship”; and (2) the “relative nature of the work test,”

which is used in “‘various situations in which the control test

does not emerge as the dispositive factor.’” Lowe v. Zarghami,

158 N.J. 606, 615-16 (1999) (quoting Marcus v. E. Agric. Ass’n,

26
58 N.J. Super. 584, 597 (App. Div. 1959) (Conford, J.A.D.,

dissenting), rev’d on dissent, 32 N.J. 460 (1960)).6

Under the control test, the factfinder considers the extent

of the employer’s right to control the work of the employee.

Ibid. (citing N.J. Prop.-Liability Ins. Guar. Ass’n v. State,

195 N.J. Super. 4, 8 (App. Div.), certif. denied, 99 N.J. 188

(1984)). This test takes into consideration a variety of

employment conditions, including “the degree of control

exercised by the employer over the means of completing the

work,” “the source of the worker’s compensation,” “the source of

the worker’s equipment and resources,” “the employer’s

termination rights,” id. at 616, as well as the “right of

termination” and the “method of payment,” Aetna Ins. Co. v.

Trans Am. Trucking Serv., Inc., 261 N.J. Super. 316, 326-27

(App. Div. 1993). “The greater the degree of control exercised

by the employer, the more likely the worker will be considered

an employee.” Lowe, supra, 158 N.J. at 616.

By contrast, the relative nature of the work test “requires

a court to examine ‘the extent of the economic dependence of the

worker upon the business he serves and the relationship of the

6 We note our recent approval of the “ABC” test, which is
“derived from the New Jersey Unemployment Compensation Act,” for
use in determining whether a worker is an employee or an
independent contractor for purposes of the Wage Payment Law and
the Wage and Hour Law. Hargrove, supra, 220 N.J. at 295. For
the reasons that follow, that test does not apply here.
27
nature of his work to the operation of that business.’” Lowe,

supra, 158 N.J. at 616 (quoting Marcus, supra, 58 N.J. Super. at

603 (Conford, J.A.D., dissenting)). Under this test, the

employer’s control is “a single, but not dispositive, factor.”

Wajner v. Newark Beth Israel Med. Ctr., 298 N.J. Super. 116, 120

(App. Div. 1997); accord Lowe, supra, 158 N.J. at 617. Instead,

it “focuses on whether there is ‘substantial economic

dependence’ upon the ‘employer’ by the ‘employee’ and whether

there has been a ‘functional integration of their respective

operations.’” Aetna Ins. Co., supra, 261 N.J. Super. at 327

(quoting Smith v. E.T.L. Enters., 155 N.J. Super. 343, 352, 382

(App. Div. 1978)). As Professor Larson notes, “the control test

is in practice giving way to the relative-nature-of-the-work

test” in part to address employers’ efforts to circumvent the

inconveniences created by the Compensation Act by, for example,

“subcontracting portions of the employer’s production and

distribution process.” 3 Larson, supra, § 62.01.

“Our courts have long recognized that, in certain settings,

exclusive reliance on a traditional right-to-control test to

identify who is an ‘employee’ does not necessarily result in the

identification of all those workers that social legislation

seeks to reach.” D’Annunzio, supra, 192 N.J. at 121. For

example,

28
 where the type of work requires little
supervision over details for its proper
prosecution and the person performing it is so
experienced that instructions concerning such
details would be superfluous, . . . the factor
of control becomes inconclusive, and
reorientation toward a correct legal
conclusion must be sought by resort to more
realistically significant criteria.

[Id. at 122 (quoting Marcus, supra, 58 N.J.
Super. at 597 (Conford, J.A.D., dissenting).]

In D’Annunzio, we noted in the context of a claim under

Conscientious Employee Protection Act (CEPA), that “labels can

be illusory as opposed to illuminating” when taken out of

context. Ibid. We held that, when “social legislation must be

applied in the setting of a professional person or an individual

otherwise providing specialized services allegedly as an

independent contractor,” the trial court should consider three

factors: “(1) employer control; (2) the worker’s economic

dependence on the work relationship; and (3) the degree to which

there has been a functional integration of the employer’s

business with that of the person doing the work at issue.”

Ibid.

In assessing these factors, we noted with approval the

“hybrid” test established by the Appellate Division in Pukowsky

v. Caruso, 312 N.J. Super. 171, 182-83 (App. Div. 1998).

D’Annunzio, supra, 192 N.J. at 123. In Pukowsky, which was

decided in the context of a Law Against Discrimination (LAD)

29
claim, the appellate panel identified twelve factors for courts

to consider when determining a worker’s status:

(1) the employer’s right to control the means
and manner of the worker’s performance; (2)
the kind of occupation -- supervised or
unsupervised; (3) skill; (4) who furnishes the
equipment and workplace; (5) the length of
time in which the individual has worked; (6)
the method of payment; (7) the manner of
termination of the work relationship; (8)
whether there is annual leave; (9) whether the
work is an integral part of the business of
the “employer”; (10) whether the worker
accrues retirement benefits; (11) whether the
“employer” pays social security taxes; and
(12) the intention of the parties.

[Pukowski, supra, 312 N.J. Super. at 182-83
(quoting Franz v. Raymond Eisenhardt & Sons,
Inc., 732 F. Supp. 521, 528 (D.N.J. 1990)).]

“This test is a hybrid that reflects the common law right-to-

control test,” D’Annunzio, supra, 192 N.J. at 123 (citing

Restatement (Second) of Agency, § 220 (1957)), and the “economic

realities” aspect of the nature-of-the-work test, ibid.

The Compensation Act, like CEPA and LAD, is “remedial

social legislation.” Cruz, supra, 195 N.J. at 42 (citation and

internal quotation marks omitted). In disputes over a worker’s

status under the Compensation Act, as in other social

legislation, “what matters most is that an individual’s status

be measured in the light of the purpose to be served by the

applicable legislative program or social purpose to be served.”

D’Annunzio, supra, 192 N.J. at 122 n.7. Thus, we hold that “the

30
test for determining those aspects of a non-traditional work

relationship . . . set out in Pukowski” applies in the context

of a dispute over the applicability of the Compensation Statute.

See id. at 122.

We note that this hybrid approach, which we now endorse for

purposes of determining whether the Compensation Act applies, is

not reflected in the current Model Jury Charge on Agency. To

that end, we refer this issue to the Supreme Court Committee on

Model Civil Jury Charges for the development and adoption of a

standard charge concerning the employee-independent contractor

distinction in the context of social legislation, to incorporate

the hybrid test set forth above.

C.

With these principles in mind, we must consider whether the

jury charge given here warranted reversal. Initially, we note

that the jury charge given here followed Model Jury Charge

(Civil) § 5.10I(A). “Generally speaking, the language contained

in any model charge results from the considered discussion

amongst experienced jurists and practitioners.” Flood v. Aluri-

Vallabhaneni, 431 N.J. Super. 365, 383-84 (App. Div.) (quoting

State v. R.B., 183 N.J. 308, 325 (2005)), certif. denied, 216

N.J. 14 (2013).

However, a model jury charge applied to a dispute that was

not contemplated by this Court or the Model Civil Jury Charge

31
Committee when drafting that charge “does not necessarily

reflect the approved language” set forth by this Court. Id. at

384. In that situation, “only when the Court has occasion to

address the contents of an adopted charge can . . . the trial

court and practitioners[] rest assured that the language adopted

is consistent with the Court’s instructions.” Ibid.

Here, Model Jury Charge (Civil) § 5.10I(A) was applied to

aid the jury in its determination of decedent’s employment

status in the context of social legislation. However, except

for the addition of “such other factors as may be reasonably

considered in determining whether the employer has control or

right to control the person employed,” our Model Jury Charge

(Civil) § 5.10I(A) tracks the language of section 220 of the

Restatement (Second) of Agency. See Carter v. Reynolds, 175

N.J. 402, 410 (2003). Section 220 defines “servant” for

purposes of establishing a principal’s liability in tort under

the doctrine of respondeat superior. Restatement (Second) of

Agency § 220 (1958).

As this Court has acknowledged, “the test for an employer-

employee relationship differs when one examines for tort-based

vicarious liability purposes . . . or for social legislation

purposes such as for workers’ compensation coverage.”

D’Annunzio, supra, 192 N.J. at 122 n.7 (quoting 3 Larson, supra,

§ 60.04). Because the jury charge given here was used in a

32
context different from the specific purpose for which the charge

was adopted, the presumption of propriety that attaches to a

trial court’s reliance on the model jury charge does not apply.

The question, therefore, is whether Model Jury Charge

(Civil) § 5.10I(A) was appropriately molded to the facts of this

case, or, if not, whether “a different outcome might have

prevailed had the jury been correctly charged.” Reynolds,

supra, 172 N.J. at 289. A comparison between Model Jury Charge

(Civil) § 5.10I(A) and the hybrid approach we now endorse shows

that the trial court did not instruct the jury as to each factor

outlined in Pukowski and D’Annunzio. Nevertheless, to the

extent such omissions were error, under the unusual facts of

this case, we do not find the charge so erroneous as to require

reversal.

Here, decedent entered into a loosely defined service

contract, which was made terminable at will by either party.

Decedent, who was not a caretaker by trade, had no social

security number, and was not permitted under the terms of her

visa to work in this country, agreed to provide general services

on an as-needed basis, and retained the discretion to determine

the parameters of that service.

The trial judge correctly informed the jury that “it is not

important whether or not [Liebman] actually ever exercised

control but rather the extent to which the right to control

33
existed.” The judge then cited a number of factors relevant to

that determination, including (1) the parties’ belief regarding

the employment relationship, (2) the degree of skill necessary

for performance of the work, (3) the length of time anticipated

for the performance of the services, (4) the regularity and

method of payment, (5) the employer’s lack of payroll

deductions, (6) who provides the supplies necessary for the

work, and (7) whether the employment was terminable at will.

The judge also instructed the jury to consider “such other

factors as may be reasonably considered” to assess whether

Liebman “controlled or had the right to control” decedent. Not

including the catchall provision, these factors account for

seven of the twelve factors identified in Pukowski and adopted

for use in the context of social legislation in D’Annunzio.

The jury charge failed to instruct the jury with regard to

the importance of whether decedent’s employment was supervised

or unsupervised. However, the record indicates that, apart from

Ross “occasionally” checking in on decedent and her father,

decedent’s work as Liebman’s caretaker was entirely

unsupervised. Indeed, Ross testified that decedent maintained

“a lot of independence” in the performance of her duties.

The jury charge also failed to instruct the jury on the

importance of whether there was an annual leave policy, whether

decedent accrued retirement benefits, and whether Liebman paid

34
social security taxes. However, each of these factors suggested

that decedent was an independent contractor: no retirement

benefits were contemplated, Liebman paid no social security

taxes, and there was no indication of an annual leave policy.

Accordingly, inclusion of these factors in the jury charge would

have supported rather than undercut the jury’s determination.

Because the omission of these factors did not have the capacity

to change the jury’s determination, the error did not warrant

reversal. Viscik, supra, 173 N.J. at 18.

Additionally, the jury charge did not instruct the jury

regarding the importance of whether decedent’s work was an

integral part of Liebman’s business. This factor addresses a

situation where the employer, who runs a business composed of

two or more overlapping operations, subcontracts a portion of

the work in furtherance of his or her core business. See 3

Larson, supra, § 62.02. Because Liebman did not run a business,

let alone a complex business with multiple operations, this

consideration does not apply.

The Appellate Division held that the trial court’s failure

to instruct the jury on the relative importance of the worker’s

economic dependence upon the employer was fatal because

“decedent would appear to have been entirely economically

dependent on Liebman.” Kotsovska, supra, 433 N.J. Super. at

548. We agree that the degree of a worker’s economic dependence

35
upon an employer is an important consideration in workers’

compensation disputes. See, e.g., D’Annunzio, supra, 192 N.J.

at 122; Caicco v. Toto Bros., Inc., 62 N.J. 305, 309 (1973);

Hannigan v. Goldfarb, 53 N.J. Super. 190, 205 (App. Div. 1958).

However, this consideration was misapplied here.

A worker’s economic dependence upon an employer is a factor

to be considered when a worker performs a function that

constitutes a part of the employer’s business. See Re/Max of

N.J., supra, 162 N.J. at 286 (finding real-estate agents to be

employees of real-estate brokers in part because “it is only the

broker that can lawfully enforce a client’s obligation to pay

[the agent’s] commission”). This consideration looks to whether

the “decedent’s labor was a cog in the wheel of [the employer’s]

operation as a subcontractor of [the employer] in as realistic a

sense as the [work] being done by [the employer’s] regular

employees.” Caicco, supra, 62 N.J. at 310. Further, “[t]he

independence of [the worker] is not to be determined by looking

at the [worker] or job alone, but by judging how independent,

separate and public his [or her] business service is in relation

to a particular employer.” Dee v. Excel Wood Prods. Co., 86

N.J. Super. 453, 460 (App. Div.) (internal quotation marks and

citation omitted), certif. denied, 44 N.J. 586 (1965). Thus,

this assessment is considered together with the factor

addressing the integration of the employee’s business with that

36
of the employer’s. See D’Annunzio, supra, 192 N.J. at 122-23

(holding “the worker’s economic dependence on the work

relationship,” along with the other two considerations, is

assessed under the twelve-part Pukowski factor test).

Here, decedent lived with Liebman and drew most, if not all

of her income from her employment as Liebman’s caretaker.7

However, as previously noted, decedent’s employment was not in

furtherance of Liebman’s business. Thus, considering the nature

of decedent’s employment, it was not reversible error to fail to

include this consideration in the jury charge.

Finally, we address the Appellate Division’s conclusion

that the portion of the trial court’s instruction explaining

“that the lack of payroll deductions and payment in cash are

factors weighing against a finding of employment was incomplete

and misleading.” These factors have been “de-emphasized,” as

the appellate panel observed, see Brower v. Rossmy, 63 N.J.

Super. 395, 405-06 (App. Div. 1960), in the sense that our

courts have recognized the comparative value of the nature-of-

the-work test over the control test in the context of social

legislation, see D’Annunzio, supra, 192 N.J. at 121-22; Caicco,

supra, 62 N.J. at 310. However, no case has stated that the

7 As the record indicates, decedent’s daughter and son-in-law
agreed to provide for any of decedent’s healthcare costs, and
there is some indication that decedent may have been drawing a
pension.
37
control test no longer applies. To the contrary, we have

incorporated without reservation the control factors, including

the method of payment and whether the employer deducts payroll

taxes, into the hybrid analysis adopted in D’Annunzio, supra,

192 N.J. at 121-22. Moreover, after reciting the control

factors, the trial judge instructed the jury that it “may give

whatever weight you deem appropriate to the fact[s] as you find

to exist to reach your decision.” Considering the jury charge

as a whole, we disagree that it was incomplete or misleading

merely because it instructed the jury that lack of payroll

deductions and the method of payment are factors for the jury to

consider.

In conclusion, “[a]lthough the charge could have been more

artfully drafted,” Mogull v. CB Commercial Real Estate Grp.,

Inc., 162 N.J. 449, 466 (2000), the charge “did not misinform

the jury as to the controlling law and was neither ambiguous nor

misleading,” R.B., supra, 183 N.J. at 325. To the extent that

it omitted relevant factors for consideration under the

Pukowski-D’Annunzio approach we now endorse, those factors

inured to the benefit of petitioner, and therefore did not

result in prejudice to Liebman. As such, we find that the

charge, though flawed, does not warrant reversal.

VI.

38
 Accordingly, we reverse the judgment of the Appellate

Division, and reinstate the jury’s verdict.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON and FERNANDEZ-VINA join in JUSTICE SOLOMON’s opinion.
JUDGE CUFF (temporarily assigned) did not participate.

39
 SUPREME COURT OF NEW JERSEY

NO. A-89 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

ESTATE OF MYROSLAVA
KOTSOVSKA, by OLENA
KOTSOVSKA, Administratrix,

Plaintiff-Appellant,

v.

SAUL LIEBMAN,

Defendant-Respondent.

DECIDED June 11, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Solomon
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE AND
CHECKLIST
REINSTATE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
TOTALS 6