Appellate Division Orders That The Division Of Workers Compensation Must Decide “employee/independent Contractor” Status

On December 26, 2013, the Appellate Division of the State of New Jersey, in a published opinion, decided the matter of Estate of Myroslava Kotsovska v. Saul Liebman.

A brief summary of the facts follows:

In September of 2008, defendant Liebman, then eighty-one years of age, was living alone following the recent death of his wife. He was in need of household assistance and his daughter hired the decedent, Myroslava Kotsovska, a fifty-nine year old Ukrainian citizen. It was agreed that the decedent would move into Liebman’s home and work seven days a week for $100.00 a day, paid in cash. She was responsible for preparing three meals a day, doing the laundry, performing light housekeeping, accompanying Liebman on errands, and assisting him with whatever tasks he required. On December 8, 2008, after she was hired, Liebman and his assistant were running errands and stopped at the Millburn Diner for lunch. Ms. Kotsovska got out of the car and stood on the sidewalk while Liebman pulled into the parking space in front of her. Liebman suddenly accelerated, driving the car over the parking block and onto the sidewalk crashing the car into the decedent, pinning her against a low wall. She eventually died from her injuries.

Her Estate filed a wrongful death action against Liebman in the New Jersey Superior Court and Liebman answered asserting the affirmative defense of lack of subject matter jurisdiction contending that exclusive jurisdiction was with the Division of Worker’s Compensation. Eventually, the trial judge denied all of the defendant’s motions and allowed the jury to decide the issue of an “employee versus independent contractor”. The jury determined that the decedent was an independent contractor and awarded a total of $525,000.00. There never was a Claim Petition filed with the Division of Worker’s Compensation.

The Appellate Division concluded that this matter should have been transferred to the Division of Workers Compensaton for determination of decedent’s employment status. Citing two Supreme Court cases on point, the Court reaffirmed that although the Superior Court had concurrent jurisdiction to decide whether the deceased was within the scope of her employment at the time of her death, primary jurisdiction over that question was with the Division. The Appellate Division went on to state that “because Liebman’s exclusivity defense turned on whether the decedent was his employee or an independent contractor, an issue over which the Division could enter a binding judgment, and one which the Division was best suited by virtue of its statutory status, administrative competence and regulatory expertise to adjudicate, the Trial Court should have transferred the case to the Division.”

In so holding, this Appellate Division remanded the matter to the Division of Worker’s Compensation to determine whether the decedent was defendant’s employee or performed services for him as an independent contractor, even though there was never a Claim Petition filed giving the Division any such jurisdiction.

For more information, contact Louis at

Date Published: March 1, 2017

Written by: Cooper Levenson, P.A.

Leave a Reply