Lesniewski v. W.B. Furze Corp.2/23/1998
be disturbed unless they are "manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interest of Justice." Perez, supra, 278 N.J. Super. at 282 (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474 (1974)); see also Kertesz v. Korsh, 296 N.J. Super. 146, 151-52 (App. Div. 1996).
Furze Corp. contends that in January 1995, it was no longer engaged as an independent contractor by EJ's. Instead, Furze as an individual had become an employee of E.J.'s, and as a result, Lesniewski was no longer employed by Furze, but by E.J.'s. Furze Corp. concludes that E.J.'s should, therefore, be liable for petitioner's injuries.
The term employee is defined by statute as:
synonymous with servant, and includes all natural persons, including officers of corporations, who perform service for an employer for financial consideration, exclusive of (1) employees eligible under the federal "Longshore and Harbor Workers' Compensation Act," 44 Stat. 1424 (33 U.S.C. ยง 901 et seq.), for benefits payable with respect to accidental death or injury, or occupational disease or infection; and (2) casual employments, which shall be defined, if in connection with the employer's business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring; provided, however, that forest fire wardens and forest firefighters employed by the State of New Jersey shall, in no event, be deemed casual employees.
[N.J.S.A. 34:15-36.]
In contrast, independent contractor's do not fall within the Worker's Compensation Act. An independent contractor is defined as:
one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work.
[Cappadonna v. Passaic Motors, Inc., 136 N.J.L. 299, 300 (Sup. Ct. 1947), aff'd, 137 N.J.L. 661 (E. & A. 1948).]
There are two tests to determine if an individual is an "employee" or an independent contractor: (1) the "control test" and (2) the "relative nature of the work test." Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 407 (App. Div.) (quoting Smith v. E.T.L. Enterprises, 155 N.J. Super. 343, 350 (App. Div. 1978)), certif. denied, 130 N.J. 6 (1992).
Under the "control test," a master-servant relationship exists "whenever the employer retains the right to determine not only what shall be done, but how it shall be done." Id. at 408 (quoting Condon v. Smith, 37 N.J. Super. 320, 325 (App. Div. 1955)). The right of control is more determinative than the actual exercise of control. Ibid. Thus, an employer may not be able to give effec
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