In New Jersey worker's compensation matters, there is usually little conflict regarding whether a claim should be heard in the Division of Workers' Compensation Court or the Superior Court.
NJSA 34:15-8, commonly known as the exclusivity provision of the statute, provides in short, if you elect to accept worker's compensation benefits, you agree that the Division of Worker's Compensation Court is the appropriate venue for the dispute and you cannot sue or be sued in another venue on this same issue.
Liability respondents have been successful in pursuing summary judgment by claiming the plaintiff is barred from bringing suit in Superior Court due to the exclusivity provision of the statute. But what about when is it unclear if a particular person is in fact an employee? What if it is contested that the injured individual was an independent contractor? Should suit be filed in Superior Court or the Division of Workers' Compensation?
The Appellate Court, in the matter of Estate of Myroslava v. Liebman, decided December 26, 2103, that when an issue of whether an individual was an employee or an independent contractor needs to be resolved in order to assess liability, the proper forum for that determination is the Division of Worker's Compensation. The Appellate Court determined that the more appropriate venue to resolve the issue is the Workers' Compensation Court. "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." (Also citing Kristiansen v Morgan, 153 NJ 298 (1984, Supreme Court decision)
The carrier must always be on the lookout for assertion of the exclusivity defense in liability claims.
By: Robert Hanneman Jr.