NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5512-11T4

ESTATE OF MYROSLAVA KOTSOVSKA,

by OLENA KOTSOVSKA, Administrator,

Plaintiff-Respondent,

v.

SAUL LIEBMAN,

Defendant-Appellant.

_________________________________________

Argued March 20, 2013 - Decided

Before Judges Grall, Simonelli and Accurso.

On appeal from Superior Court of New Jersey, 

Law Division, Union County, Docket 

No. L-4258-09.

Robert F. Cox argued the cause for appellant 

(McCreedy and Cox, attorneys; Mr. Cox, on 

the briefs).

George E. Spaneas of the New Hampshire bar, 

admitted pro hac vice, argued the cause for 

respondent (Smith, Stratton, Wise, Heher & 

Brennan, LLP, and Mr. Spaneas, attorneys;

Gerald D. Wixted, and Mr. Spaneas, of 

counsel and on the briefs). 

The opinion of the court was delivered by

ACCURSO, J.A.D.

APPROVED FOR PUBLICATION

December 26, 2013

APPELLATE DIVISION

December 26, 2013
2 A-5512-11T4

Defendant Saul Liebman appeals from a $565,806.37 final 

judgment in this wrongful death action, following a jury verdict 

in favor of plaintiff Estate of Myroslava Kotsovska (the 

estate), and from the denial of his motion for a new trial.

Liebman contends that decedent was his employee, and thus the

Workers' Compensation Act's (the Act) exclusivity bar, N.J.S.A.

34:15-8, prohibits her estate from maintaining this action. The 

central issue on appeal is whether the question of the 

decedent's status as an employee or independent contractor, 

which the jury determined adversely to Liebman, should have been 

decided in the Division of Workers' Compensation (the Division). 

We conclude that the Division was the proper forum for 

resolution of that issue pursuant to Kristiansen v. Morgan, 153 

N.J. 298 (1998), modified on other grounds, 158 N.J. 681 (1999). 

Because the Superior Court has concurrent jurisdiction to decide 

whether the decedent was an employee or independent contractor, 

however, that error would not alone require the course of this 

matter to be rerun. But as we also conclude that the jury 

instructions on the issue were seriously flawed, reversal and 

remand is required. Because we reject Liebman's remaining 

points of error, however, we affirm the jury's damages verdict 

and preserve it pending remand to the Division to determine 

decedent's employment status. 
3 A-5512-11T4

The basic facts of this tragic case are easily summarized. 

In September 2008, Liebman, then eighty-one years old, was 

living alone following the recent death of his wife. His 

daughter, Robin Ross, was making inquiries among her friends for 

someone who could move into her father's home, cook his meals 

and assist him in his daily activities. Decedent, a 59-year-old 

Ukrainian citizen on an extended visit with her daughter in New 

Hampshire, was referred to Ross for the role.

1

Ross initially communicated with decedent, who spoke almost 

no English, through decedent's daughter. Decedent agreed to 

come to New Jersey to meet Ross and her father and, if the 

arrangements were suitable, to begin work immediately.

Decedent met with Ross and Liebman in Liebman's home, 

accompanied by her son-in-law who served as a translator. The 

parties agreed that decedent would move into Liebman's home and 

work seven days a week for one hundred dollars a day, which she 

would receive in cash. Decedent 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. Liebman walked with a cane and 

occasionally needed assistance on stairs or getting in or out of 

 

1 Decedent had apparently provided similar services to a New 

Jersey family on an earlier visit.
4 A-5512-11T4

the car. Decedent was to also accompany Liebman if he chose to 

go out to eat, at his request. 

The parties did not discuss whether decedent's visa 

authorized her to work in this country, which it did not, or 

whether decedent was to be Liebman's employee or considered an 

independent contractor. There was also no discussion as to the 

duration of the arrangement, although the parties did discuss 

the decedent returning to her daughter's home for the Christmas 

holiday. Decedent's son-in-law advised Ross that decedent was 

without health insurance, and that he and his wife would pay her

medical bills if she got sick. 

The parties met on October 21, 2008, and decedent began her 

duties immediately thereafter. On December 8, 2008, Liebman and

decedent were running errands and stopped at the Millburn Diner 

for lunch. Decedent got out of the car and stood on the 

sidewalk while Liebman pulled into the parking space in front of 

her. As decedent stood on the sidewalk in front of a low patio

wall, Liebman suddenly accelerated, driving the car over the 

parking block and onto the sidewalk. Liebman crashed the car 

into decedent, pinning her against the low wall. The accident 

severed decedent's left leg below the knee, resulting in her 

death nearly an hour later. 
5 A-5512-11T4

The estate filed a wrongful death action against Liebman in 

Superior Court. Liebman answered and asserted an affirmative 

defense of lack of subject matter jurisdiction, contending that 

exclusive jurisdiction was in the Division. Liebman

subsequently filed a motion to dismiss on the same grounds. The 

court denied the motion and advised the parties that it would 

entertain a motion for summary judgment after the completion of 

discovery. If after hearing that motion the court concluded 

that decedent was an employee, the matter would be transferred 

to the Division.

Following discovery, Liebman filed a motion before another 

judge to transfer the case to the Division. That judge denied 

the motion because there was no claim pending in the Division 

and the limitations period for filing a workers' compensation

petition had expired. Liebman's motion for reconsideration was 

denied. Liebman moved again for reconsideration, this time 

attaching a certification from his homeowner's insurance carrier

acknowledging the existence of workers' compensation coverage

and notice of the claim. The carrier conceded that the accident 

arose out of the course of decedent's employment and agreed not 

to raise a limitations defense to transfer of the claim. The 

court again denied the motion. We denied Liebman's motion for 
6 A-5512-11T4

leave to appeal. Liebman's subsequent motion for summary 

judgment was also denied.

The case was tried over several days. The jury determined 

that decedent was an independent contractor and awarded the 

estate $300,000 for decedent's pain and suffering and $225,000

for her wrongful death. Liebman's motion for new trial was 

denied. This appeal followed.

We conclude that this matter should have been transferred 

to the Division for determination of decedent's employment 

status. The Court in Kristiansen held that, although the 

Superior Court and the Division have concurrent jurisdiction to 

decide an exclusivity defense, primary jurisdiction is in the 

Division where, as here, "no issue has been raised that the 

Division cannot decide in a manner that is binding on all the 

interested parties." Kristiansen, supra, 153 N.J. at 311. 

The trial court rejected that Kristiansen controlled 

because both it and Wunschel v. City of Jersey City, 96 N.J. 651 

(1984), on which Kristiansen relied, involved situations, unlike 

this one, in which there was no dispute that the deceased worker 

was an employee covered by the Act. It noted the Kristiansen

Court emphasized that the Legislature did not intend workers who 

had accepted the provisions of the Act, pursuant to N.J.S.A.

34:15-7, to have an election as to whether to pursue common-law 
7 A-5512-11T4

tort remedies. Kristiansen, supra, 153 N.J. at 311-12. 

Reasoning that decedent could not be deemed to have accepted the 

provisions of the Act if she were not defendant's employee, as 

her estate maintained, the trial court determined that the 

Division's jurisdiction could not be considered exclusive while

a dispute existed over decedent's employment status. The court 

thus concluded that the Superior Court "must have jurisdiction 

to determine whether plaintiff is an employee," at least when 

the plaintiff has not also filed a workers' compensation 

petition. 

We think that Wunschel and Kristiansen compel a different 

result. In Wunschel a city police officer, Wunschel, was 

accidently shot and killed by his on-duty partner, who was 

picking Wunschel up at his second job to start their tour. 

Wunschel, supra, 96 N.J. at 655-56. Wunschel's widow filed a 

petition for workers' compensation benefits against both of

Wunschel's employers, and a wrongful death suit against them as 

well as against Wunschel's partner. Id. at 656. The central 

issue in both actions was whether Wunschel was working for the 

City or his second employer when he was shot. Id. at 657. When 

the case reached the Supreme Court, the Wunschel Court was 

confronted with a situation in which the Division and the 

Superior Court had reached the opposite result on that same 
8 A-5512-11T4

factual issue. Id. at 658. In order to avoid such "illogical 

inconsistenc[ies]" in the future, the Court determined to 

"design a procedure to 'assure that a controversy, or its most 

critical facets, will be resolved by the forum or body which, on 

a comparative scale, is in the best position by virtue of its 

statutory status, administrative competence and regulatory 

expertise to adjudicate the matter.'" Kristiansen, supra, 153 

N.J. at 309 (quoting Wunschel, supra, 96 N.J. at 664). 

The Court decided that the best forum for "employment 

issues" is the Division. Wunschel, supra, 96 N.J. at 664. The 

Wunschel Court acknowledged, however, that the Division's 

limited jurisdiction would on occasion make it impossible for 

the Compensation Court to exercise jurisdiction over a party

whose participation was necessary to resolve all aspects of the 

controversy, such as when the fellow-servant defense is 

implicated and the fellow servant declines to intervene in the 

Division proceeding. Id. at 664, 665-67. In such cases, the 

Court recognized concurrent jurisdiction in the Superior Court 

to decide the employment issues related to the fellow-servant 

defense. Id. at 666.

The Court revisited the question of the concurrent 

jurisdiction of the Division and the Superior Court in these 

matters in Kristiansen. Kristiansen was employed by the State 
9 A-5512-11T4

as a bridge operator. Kristiansen, supra, 153 N.J. at 302. He 

was struck and killed by a motorist as he was leaving the bridge 

at the end of his shift. Id. at 304. His widow filed both a 

claim petition in the Division and a wrongful death action 

against the State and the driver. Ibid. The trial court 

rejected the State's exclusivity defense, concluding that it had 

concurrent jurisdiction to decide whether Kristiansen was still 

within the scope of his employment when he was run over on the 

bridge. Id. at 302.

Describing the issue as "different from, yet related to, 

the employment issue raised in Wunschel," the Kristiansen Court 

held that although the Superior Court had concurrent 

jurisdiction to decide whether Kristiansen was within the scope 

of his employment at the time of his death, primary jurisdiction 

over that question was in the Division. Id. at 313-14 

(explaining that primary jurisdiction analysis requires 

determining which of possible tribunals has predominant interest 

in, and expertise to decide, disputed issue). The Court 

determined that the Division's jurisdiction was primary because, 

unlike in Wunschel, the Division could decide all aspects of the 

controversy in a manner binding on all the interested parties,

and "[r]egardless of whether the employer admits or denies the 

compensability of an accident, the Division is the forum best 
10 A-5512-11T4

suited to decide whether the accident falls within the coverage 

formula of the Act." Id. at 313.

Thus, although it is certainly true, as the trial court 

noted, that both Wunschel and Kristiansen addressed the 

compensability of the accidents that befell those workers and 

not their status as employees,2 we think that distinction less 

important than the Court's broader point that the Division is 

"the forum best suited to decide employment issues," between the 

Superior Court and the Division in a primary jurisdiction 

analysis. Id. at 309, 313-14. Larson likewise questions the 

soundness of hinging the primary jurisdiction of a compensation 

board on the distinction between employment status and 

compensability of the accident, 6 Lex K. Larson, Larson's 

Workers' Compensation Law § 102.06 (Mathew Bender rev. ed. 2013)

(criticizing distinction on basis that employment status is more 

"fundamental" than compensability as "very questionable"), 

arguing that the Board is equally without jurisdiction to award 

compensation in the absence of employment relation as injury in 

the course of employment. Id. at § 130.07. 

 

2 The precise question in Wunschel was whether the deceased 

police officer was working as an employee of Jersey City's 

police department or moonlighting for a private employer, or 

both, at the time of his death. Wunschel, supra, 96 N.J. at 

660. Accordingly, the question in that case is closely 

analogous to the employment status issue presented in this 

matter.
11 A-5512-11T4

While the presence of other parties could, depending on the 

circumstances, counsel against transfer to the Division,

Wunschel, supra, 96 N.J. at 666, here, because there was no such 

impediment, Kristiansen compelled the transfer, 153 N.J. at 313. 

Accordingly, we hold that because Liebman's exclusivity defense 

turned on whether 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," id. at 309 (quoting 

Wunschel, supra, 96 N.J. at 664), the trial court should have 

transferred the case to the Division.

Because the Law Division had concurrent jurisdiction to 

decide whether the decedent was an employee or independent 

contractor, the failure to recognize the Division's primary 

jurisdiction would not, standing alone, require the case to be 

reversed. Kristiansen, supra, 153 N.J. at 318. We agree with 

Liebman, however, that the instructions to the jury were 

seriously flawed and clearly capable of producing an unjust 

result, thus requiring reversal. R. 2:10-2. 

The court charged the jury generally regarding the 

distinctions between an employee and a general contractor with 
12 A-5512-11T4

reference to a lengthy list of factors. Specifically, and by 

way of example, the judge instructed that 

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.

Determining whether an individual is an employee or an 

independent contractor is often difficult and a recitation of 

factors organized into "pro-employee and pro-independent 

contractor lists is not particularly helpful" in accomplishing 

the task. Marcus v. E. Agric. Ass'n, 58 N.J. Super. 584, 600

(App. Div. 1959) (Conford, J.A.D. dissenting), rev'g on dissent, 

32 N.J. 460 (1960). Moreover, because the Act is socially 

remedial legislation, "[t]he term 'employee' is to be defined 

liberally in order to bring as many cases as possible within the 

scope of the Workers' Compensation Act," even when the employee 

is attempting to have himself excluded from its coverage. Sloan 

v. Luyando, 305 N.J. Super. 140, 147 (App. Div. 1997). 

 The trial court's instructions focused only on defining 

whether decedent was an employee based on the control test,

which is grounded in traditional master-servant principles. New 

Jersey Prop.-Liab. Ins. Guar. Ass'n v. State, 195 N.J. Super. 4, 

14 (App. Div.), certif. denied, 99 N.J. 188 (1984) (explaining 
13 A-5512-11T4

the control test's four factors as the degree of control the 

employer has the right to exercise, the method of payment, who 

furnishes the equipment, and the right of termination). In 

compensation cases, however, the Supreme Court has adopted an

additional "economic and functional" test, of which the 

determinative criteria are "'not the inconclusive details of the 

arrangement between the parties, but rather 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.'" Id. at 10 (quoting Marcus, supra, 58 N.J. 

Super. at 603 (Conford, J.A.D., dissenting)). The trial court 

did not instruct the jury on this relative nature of the work 

test, although highly relevant here as decedent would appear to 

have been entirely economically dependent on Liebman.

In addition, the trial court's instruction that the lack of 

payroll deductions and payment in cash are factors weighing 

against a finding of employment was incomplete and misleading. 

Although they are obvious factors suggesting independent 

contractor status, we acknowledged their reduced importance in 

this context more than fifty years ago. Brower v. Rossmy, 63 

N.J. Super. 395, 405-06 (App. Div. 1960) (noting that factor of 

lack of payroll deductions for withholding taxes was deemphasized in Congleton v. Pura-Tex Stone Corp., 53 N.J. Super.
14 A-5512-11T4

282, 290 (App. Div. 1958), certif. denied, 34 N.J. 65 (1961)). 

We have cautioned that these factors, included in the control 

test, must be viewed critically in light of Larson's

acknowledgment of the desire on the part of some "employers to 

avoid both the financial cost and the bookkeeping and reporting 

inconvenience that goes with workmen's compensation, 

unemployment compensation, social security and the like." 

Hannigan v. Goldfarb, 53 N.J. Super. 190, 205-06 (App. Div.

1958) (quoting Larson, supra, §§ 43.51, 45.10) (finding taxi 

driver to be "employee" for purposes of the Act despite official 

title of independent contractor). 

Their inclusion by the trial judge without further 

explanation, part of a larger failure to tailor the specifics of 

the court's charge to the facts of the case, combined with the 

absence of an instruction on the relative nature of the work 

test, resulted in a charge that did not adequately convey the 

law and was clearly capable of producing an unjust result. Sons 

of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997).3

 

3 Although Liebman lodged several objections to the court's 

charge, the failure to include the relative nature of the work 

test and the instruction on the effect of the cash payments and 

lack of withholding were not among them. Nevertheless, we are 

satisfied that they are appropriately noticed under the plain 

error doctrine. Ewing v. Burke, 316 N.J. Super. 287, 293 (App. 

Div. 1998) (explaining that under the plain error rule, even 

when counsel fails to object to jury instructions, "a charge 

(continued)
15 A-5512-11T4

Turning to the issue of damages, Liebman contends that the 

court's improper judicial notice of decedent's conscious pain 

and suffering resulted in an unjustified award on her survival 

claim. He also contends that because the Division should have 

decided whether decedent was an employee or independent 

contractor, the jury's entire damages verdict must likewise be 

set aside. We disagree.

The purpose of taking judicial notice is to save time and 

promote judicial economy by dispensing with the necessity of 

proving facts that cannot be seriously disputed and are 

generally or universally known. State v. Silva, 394 N.J. Super.

270, 275 (App. Div. 2007). There is no dispute that decedent 

did not die instantaneously. As counsel and the court were 

discussing the court's introductory remarks to the jurors in 

anticipation of voir dire, Liebman stipulated to negligence and 

sought to preclude details of the accident being presented to 

the jurors. Plaintiff objected as such details were relevant to 

the estate's survival claim. That led to the following exchange 

between defense counsel and the court.

[DEFENSE COUNSEL]: [The decedent] was 

conscious before but as soon as the accident 

occurred, we have no idea. That is an area 

 

(continued)

which misleads the jury will require a reversal and a new 

trial"). 
16 A-5512-11T4

for expertise unless the court can take 

judicial notice of that. I don't believe 

the court can.

THE COURT: I'll take judicial notice that 

anybody who is conscious and gets their leg 

traumatically amputated, suffered pain.

"[F]acts that can be reasonably questioned or disputed may 

not be judicially noticed." Ibid. Accordingly, the trial judge 

should not have taken judicial notice of decedent's conscious 

pain and suffering as a result of the accident, which he did. 

That error, however, was harmless as plaintiff developed ample 

evidence from both Liebman, as well as a man who stopped to 

help, that decedent appeared conscious for several minutes

following the accident, her eyes were open, she was breathing

laboriously, murmuring or groaning, and appeared to be trying to 

respond to those speaking to her. Smith v. Whitaker, 160 N.J.

221, 236 (1999) (noting New Jersey allows recovery for pain and 

suffering when it can be shown that decedent survived her 

injuries, "however briefly"). Accordingly, we reject Liebman's 

challenge to the jury's award for pain and suffering on that 

ground.

At oral argument, we asked the parties to brief their 

positions on whether the jury's verdict on damages could stand 

were we to remand the question of decedent's employment status 

to the Division and it were to conclude that decedent was an 
17 A-5512-11T4

independent contractor. Liebman contends that the jury's 

damages verdict must be set aside in that event because the 

verdict "was tainted by evidence and testimony of witnesses 

which the jury should never have been exposed to." In essence, 

Liebman posits that the jury may have punished him for appearing 

to have failed to provide decedent with the benefits of 

employment during her life then seeking the shelter of the Act 

once she was dead.

The proofs would certainly be somewhat different in a trial 

limited to damages, but that alone is insufficient to set aside 

the jury's damages verdict. Truchan v. Sayreville Bar & Rest., 

Inc., 323 N.J. Super. 40, 53 (App. Div. 1999) (preserving a 

damages award pending a new trial on liability despite 

reversible error because "the liability issues and the damages 

issues were fairly separable"); Showalter v. Barilari, Inc., 312 

N.J. Super. 494, 515-16 (App. Div. 1998) (remanding for a new 

trial as to liability only as "none of the errors identified 

impacted on the damage verdict"). Except with regard to the 

claim as to judicial notice, which we have rejected, Liebman

does not claim that the damages verdict is excessive, and we do 

not find it so. Jastram v. Kruse, 197 N.J. 216, 228 (2008) 

(explaining that damages awards should be set aside only upon a 
18 A-5512-11T4

finding of manifest miscarriage of justice). Accordingly, we 

preserve it pending remand to the Division.

We have considered Liebman's remaining arguments and 

determined that they are not of sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E). 

To summarize, we reverse the judgment on liability only and 

remand the matter to the Division to determine whether the 

decedent was defendant's employee or performed services for him 

as an independent contractor. The Division shall thereafter 

transfer the matter to the Law Division, which shall, in 

accordance with the Division's determination of decedent's 

employment status, either reinstate the judgment in favor of the 

estate or dismiss the matter with prejudice in accordance with 

this opinion.

Affirmed in part, reversed in part, and remanded for 

further proceedings. We do not retain jurisdiction.