On June 11, 2015, the Supreme Court of New Jersey reversed the Appellate Division’s decision in the Estate of Myroslava Kotsovska v. Saul Liebman case and held that the trial court was correct in awarding wrongful death benefits to the estate. In this case, Ms. Kotsovska was hired by Saul Liebman’s daughter to provide in home care for her father, who was 89 years old. She agreed to cook meals, do laundry and do light housekeeping in exchange for being paid $100 per day, cash. There was nothing in writing to formalize the agreement between the parties.

On December 8, 2008, Liebman and Kotsovska were running errands and stopped for lunch at a local diner. Liebman was driving. He dropped Kotsovska off on the sidewalk in front of the diner while he pulled into a parking space in front of where she was standing. Liebman accidentally pushed the accelerator, causing the car to pin Kotsovska against a wall. Unfortunately, she died from her injuries.

Ms. Kotsovska’s estate filed a wrongful death suit against Mr. Liebman, but did not file a workers’ compensation claim. Liebman argued that the case should be transferred to the Division of Workers’ Compensation for a determination of Kotsovska’s status as an employee versus an independent contractor. Mr. Liebman’s homeowner’s carrier stipulated that the accident arose from Kotsovska’s employment.

In Superior Court, the trial judge found that Ms. Kotsovska was an independent contractor and awarded a total of $525,000 to her estate. On appeal, the Appellate Division reversed, finding that the matter should have been transferred to the Division of Workers’ Compensation on the issue of whether or not Ms. Kotsovska was an employee or independent contractor at the time of her death.

Most recently, the Supreme Court of New Jersey reversed the Appellate Division’s decision, and agreed with the trial court that an award should be entered in favor of the estate, without the necessity of the matter being transferred to the Division of Workers’ Compensation to determine employment status. They reasoned that this case was different from other cases because “…Petitioner did not file 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.” This fact convinced the Supreme Court that the Superior Court had jurisdiction to decide the employment issue.

One has to wonder how this case would have been resolved if the analysis was done in the Division of Workers’ Compensation. It is more likely than not that Ms. Kotsovska would have been found to be an employee, and the workers’ compensation bar would have prevented her estate from filing a wrongful death suit against her employer. The bottom line of this case is that the Division of Workers’ Compensation does not have primary jurisdiction if the injured worker only files suit in Superior Court.