Verdict Reinstated for Mutilated Aide’s Family

     TRENTON (CN) – Upholding the $500,000 award to the family of a home health aide accidentally killed by her elderly employer, New Jersey’s Supreme Court found today that workers’ compensation law did not limit their recovery.
     The case centers on the grisly death of Myroslava Kotsovska, a 59-year-old woman from the Ukraine who agreed in fall 2008 to work as a live-in home health aide for an 89-year-old widower, Gary Liebman.
     For about $100 cash a day, Kotsovska cooked Liebman’s meals, did his laundry, accompanied him on errands, and helped him in his other daily activities. She also agreed to go out with Liebman if he decided to eat at a restaurant.
     A little over a month into the gig, in December 2008, Kotsovska accompanied Liebman to a diner for lunch.
     Liebman let Kotsoyska out of the car to park but hit the gas too hard, driving onto the sidewalk where his aide was standing, and pinning her against a nearby wall. Kotsoyska’s leg was severed below the knee, and she died an hour later.
     Kotsoyska’s family in turn sued Liebman for wrongful death, but Liebman contended that the case should have been filed as a petition for workers’ compensation outside of court.
     Kotsoyska had not had a Social Security number and her visa did not authorize her to work in the United States, but Liebman said an off-the-books employee was still an employee under the state’s Workers’ Compensation Act.
     The Union County Superior Court advanced the case, however, leaving it up to the jury to determine whether Kotsoyska was an employee or independent contractor.
     Though the jury found that she was an independent contractor, an appellate panel reversed that $525,000 verdict for Kotsoyska’s family.
     New Jersey’s Supreme Court unanimously reinstated that verdict Thursday, finding that the trial court’s jury instructions may have been “flawed” but were ultimately correct.
     The judge had faltered in not instructing the jury on whether Kotsoyska had any leave policy or whether she was supervised – two key determinants in whether a contractor is independent or not – but that fact did not warrant reversal of the award, the court ruled.
     “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,” Justice Lee Solomon for the court. “Although the [jury instruction] could have been more artfully drafted, it did not misinform the jury.
     Saying Kotsoyska’s employment status need not necessarily face a determination by the Division of Worker’s Compensation, Solomon added that Union Superior Court had been up to the task.
     Five justices concurred but Justice Mary Catherine Cuff did not participate in the ruling.

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