MICHAEL SAVIO VS. MATTHEW v. GIAMBRI, SR.Â (DIVISION OF WORKERS' COMPENSATION), A-0701-15T1

Petitioner Michael Savio was injured on June 1, 2006, falling ~2.5 stories from a ladder while removing siding at a residence where respondent Matthew Giambri had taken him for work.
Savio testified he had worked for Giambri for about four weeks prior to the accident performing construction tasks (concrete, plumbing, siding); he was paid daily (cash or check) and received a W-2 from Giambri’s company.
On the injury day, Giambri drove Savio to the site, pointed out the task (remove siding), supplied materials, then left the site; Savio did not use his own tools or bring materials.
Savio was disabled and received medical treatment through 2010; his doctor advised he could not return to construction work.
A workers’ compensation judge found Savio "extremely credible," applied the twelve-factor Kotsovska test, and concluded Savio was Giambri’s employee entitled to benefits; judgment was entered August 31, 2015.
Giambri appealed, arguing insufficient evidence that Savio was an employee (contending Savio was a casual worker) under the twelve-factor test.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Savio was an employee of Giambri for workers’ compensation purposes	Savio: evidence of regular work for ~4 weeks, paid by employer, received W-2, used employer-supplied materials, tasks were integral to Giambri’s contracting business	Giambri: little supervision, left site, casual/independent worker; questions asked at hearing show lack of control	Court affirmed: substantial credible evidence supports employee finding under the twelve-factor test
Whether employer exercised control over means and manner of work	Savio: Giambri assigned the task, supplied materials, directed where to work	Giambri: left site after pointing out work, so did not exercise ongoing control	Court: control element supported (even if supervision minimal for the task)
Significance of payment method and tax treatment	Savio: paid daily by cash/check and received W-2, indicating employee relationship	Giambri: reliance on cash payment and intermittent supervision to argue independence	Court: W-2 and regular payment support employee status
Weight to give compensation judge’s credibility findings on review	Savio: judge found him credible; testimony unrefuted	Giambri: challenges sufficiency of evidence	Court: gave deference to judge’s credibility findings and affirmed as supported by competent, credible evidence

Kotsovska v. Liebman, 221 N.J. 568 (2015) (adopts twelve-factor test for employee status under the Workers’ Compensation Act)
Lindquist v. City of Jersey City Fire Dep’t, 175 N.J. 244 (2003) (standard of appellate review in workers’ compensation matters)
Close v. Kordulak Bros., 44 N.J. 589 (1965) (deference to factfinder’s credibility determinations)
Perez v. Monmouth Cable Vision, 278 N.J. Super. 275 (App. Div. 1994) (reiterating standard for review of compensation judge findings)
Rova Farms Resort, Inc. v. Inv’rs Ins. Co., 65 N.J. 474 (1974) (records must be supported by competent, relevant, credible evidence)
Sager v. O.A. Peterson Constr. Co., 182 N.J. 156 (2004) (recognizing compensation judges’ expertise)
D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110 (2007) (control factor carries less weight when work requires little supervision)
Marcus v. E. Agric. Ass’n, 58 N.J. Super. 584 (App. Div. 1959) (discussing supervision and control relevance where work is independent)
Pukowski v. Caruso, 312 N.J. Super. 171 (App. Div. 1998) (source of some factors incorporated into Kotsovska)