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Kraivanger v. Radburn Association

335 N.J. Super. 169, 762 A.2d 222 (App. Div. 2000)

WORKERS’ COMPENSATION—Even an unpaid counselor in training can be considered to be an employee for workers’ compensation purposes if payment is made by way of reimbursement for expenses to the trainee, distinguishing such an individual from an uncovered true volunteer.

A fourteen year old girl was injured while engaged in activities as a counselor-in-training (CIT). The program was run by a non-profit community association as a half-day care program available to young residents of the association. The CIT was not paid a regular wage for her work, as regular counselors were, but she did receive compensation for one training day she attended in advance of the program’s opening. Her expenses for trips and the like were paid or reimbursed by the association although such expenses for parents and others who volunteered their services were not paid or reimbursed. In addition, CITs were advised by the Association that “good evaluations on [CIT] performance reviews will be considered when making future staff selections,” i.e., those for regular counselor positions. The Court accepted that the Worker’s Compensation Act does not cover volunteers as distinguished from employees. It also recognized that the “primary governing standard defining an employee is found in the [Worker’s Compensation] Act as one ‘who perform(s) a service for an employer for financial consideration.’” Under the Act, “financial consideration” includes anything of value to be received by a petitioner in return for services excluding the hope of future favors. The Appellate Division did not agree with the worker’s compensation judge that there was “absolutely no evidence of financial consideration” passed from the Association to the CIT. To the Court, “the one-day’s pay for participation in the training program was clearly some consideration, and was regarded as such by [the association] when it required [the girl] to file employment documents, including a W-4 form.” In addition, the payment or reimbursement of expenses could also be seen as a form of compensation when others who might be classified “true volunteers” were not so compensated. Applying that test, the Court found that the CIT was an employee and should have been covered by the provisions of the Worker’s Compensation Act.

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