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.
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 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,
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 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
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 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 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
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.
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 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,
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,
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,
We granted plaintiffs petition for certification. 217
N.J.
587,
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 plaintiffs 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.
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
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) § 5.101(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 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. Lieb-man posits that the threshold issue of a plaintiffs employment status is an employment matter, and that therefore under Wun-schel 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(1) 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 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,
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,
“[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,
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 employ ment ... 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 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.]
“[A]scrib[ing] to the statutory words their ordinary meaning and significance,”
DiProspero v. Penn,
183
N.J.
477, 492,
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
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 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 plaintiffs 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,
“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,
“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 disruptingthe statutory scheme; and 4) whether prior application has been made to the agency. [Magic Petroleum Corp., supra, 218 N.J. at 407, 95 A.3d 175 (quoting Boldt v. Correspondence Mgmt., Inc., 320 N.J.Super. 74, 85,726 A.2d 975 , (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,
Second, while we acknowledge that “[t]he forum best suited to decide employment issues is the Compensation Court,”
Wunschel, supra,
96
N.J.
at 664,
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,
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.
In
Kristiansen, supra,
a bridge worker was struck and killed by a ear after his shift had ended while on his way to an off-site parking lot. 153
N.J.
at 302-04,
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 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.
Y.
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,
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,
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,
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,
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.’ ”
Lowe, supra,
158
N.J.
at 616,
“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 identifica
tion of all those workers that social legislation seeks to reach.”
D’Annunzio, supra,
192
N.J.
at 121,
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 122,927 A.2d 113 (quoting Marcus, supra, 58 N.J.Super. at 597,157 A.2d 3 (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,
(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.
[Pukowsky, supra, 312 N.J.Super. at 182-83,711 A.2d 398 (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-eontrol test,”
D’Annunzio, supra,
192
N.J.
at 123,
The Compensation Act, like CEPA and LAD, is “remedial social legislation.”
Cruz, supra,
195
N.J.
at 42,
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)
§ 5.101(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,
However, a model jury charge applied to a dispute that was not contemplated by this Court or the Model Civil Jury Charge
Committee when drafting that charge “does not necessarily reflect the approved language” set forth by this Court.
Id.
at 384,
Here,
Model Jury Charge (Civil)
§ 5.101(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)
§ 5.101(A) tracks the language of section 220 of the Restatement (Second) of Agency.
See Carter v. Reynolds,
175
N.J.
402, 410,
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,
The question, therefore, is whether
Model Jury Charge (Civil)
§ 5.101(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,
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 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 Pukowsky 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 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,
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,
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,
In conclusion, “[although the charge could have been more artfully drafted,”
Mogull v. CB Commercial Real Estate Grp., Inc.,
162
N.J.
449, 466,
VI.
Accordingly, we reverse the judgment of the Appellate Division, and reinstate the jury’s verdict.
For reversal and reinstatement — Chief Justice RABNER and Justices LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON — 6.
Opposed — None.
Notes
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.”
The 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.
Prior 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, Larsons Workers’ Compensation Law § 2.03 (2006).
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,
This 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.
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,
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.