Case # 40708094
Matter of Clare Hayduscko
2019 NY Wrk Comp 40708094
By: Chair Rodriguez
* This decision also pertains to the following case(s): 40705174.
The Full Board, at its meeting on January 15, 2019, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed July 25, 2018.
The issues presented for Mandatory Full Board Review are:
- whether the record supports the finding that the claimant was working as an employee covered by the Workers' Compensation Law (WCL) or an independent contractor; and
- if the claimant is found to be an employee, whether concurrent employment exists.
The Workers' Compensation Law Judge (WCLJ) found that the claimant was an independent contractor and disallowed the claim. Since her work in WCB #40708094 was as an independent contractor, the WCLJ found that this employment should not be considered for WCL § 14(6) purposes and found that there was no concurrent employment in WCB #40705174.
The Board Panel majority affirmed the WCLJ decision in its entirety.
The dissenting Board Panel member would find that the claimant is a domestic worker under WCL § 2(4).
The claimant filed an application for Mandatory Full Board Review on August 23, 2018. Sunrise Senior Living filed a rebuttal on September 21, 2018. The Special Funds Group filed a rebuttal on September 24, 2018. The self-insured employer in WCB #40705174, M.E.A. Healthcare Services, filed a rebuttal on September 20, 2018.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant filed a C-3 (Employee Claim) on August 20, 2007, reporting that she injured her right ankle in a work-related accident on June 9, 2007. The claimant, a home health aide, asserted that she was injured when she slipped on a wet floor. The claimant noted that her employer was Clare Hayduscko, who is uninsured. In addition to this claim for workers' compensation benefits (WCB #40708094), claimant also brought a third-party action seeking damages for the injuries suffered in her June 9, 2007, accident.
The claimant has an associated case, WCB #40705174, which was established in November 2007 for a left knee injury stemming from a work-related accident on May 9, 2007, while the claimant was working as a home health aide for M.E.A. Healthcare Services. By Notice of Decision filed November 13, 2007, the claimant was directed to produce documentation regarding her claim for concurrent employment as a home health aide for Ms. Hayduscko.
A hearing was held on February 15, 2008, with respect to both the May 9, 2007, and June 9, 2007, accidents. The claimant testified that while she was working for M.E.A. Healthcare Services, she also had a private job working for Ms. Hayduscko that involved caring for "E" (Ms. Hayduscko's mother). She cared for E. seven hours per day, six days per week, for a total of 42 hours per week. Ms. Hayduscko paid her $11.00 per hour. While caring for E., she slipped on water and injured her right ankle. She did not receive a W-2 form or a 1099 form from Ms. Hayduscko. Her work schedule was set by Ms. Hayduscko and herself.
On cross-examination, the claimant testified that she was a licensed home healthcare worker with 16 years of experience with M.E.A. Healthcare Services. In response to questions posed by the WCLJ, the claimant testified that Ms. Hayduscko was a teacher and to her knowledge, Ms. Hayduscko did not run a home healthcare agency. She originally cared for E. through her work with M.E.A. Healthcare Services, but after approximately one year she was hired privately by Ms. Hayduscko to take care of E.
On re-direct examination, the claimant testified that she took care of E. at Sunrise Assisted Living, which is where E. lived. The claimant's duties included personal care of E. and light housekeeping. She was responsible for tidying up the bed, taking E. to the bathroom, and cleaning her chair. She did not prepare meals for E. as Sunrise Assisted Living prepared and served her meals.
The Board file contains five copies of paychecks issued to the claimant and drawn on the account of E., one of which was signed by Ms. Hayduscko (see ECF Doc ID# 295073941). The checks are dated March 23, 2007, April 21, 2007, April 28, 2007, May 5, 2007, and May 12, 2007, and two of the copies indicate "42 hours" in the "For" section.
In a decision filed on February 21, 2008, in this claim (WCB #40708094), the WCLJ found that the claimant was an independent contractor based on the nature of her work for Ms. Hayduscko.
In a decision filed on February 21, 2008, in the May 9, 2007, claim (WCB #40705174), the WCLJ found no concurrent employment. The claimant subsequently appealed both decisions.
In a decision filed on February 9, 2009, the Board Panel rescinded both decisions and returned the case to the hearing calendar for further development of the record with testimony from the claimant and Ms. Hayduscko on the issue of the claimant's specific duties relative to her care for E., Ms. Hayduscko's mother. The issue of concurrent employment in WCB #40705174 was held in abeyance pending the outcome of the issue of employer-employee relationship in WCB #40708094.
At a hearing on May 7, 2009, the claimant testified that she was employed by M.E.A. Healthcare Services for approximately 18 years. In 2007, she was assigned to care for Ms. Hayduscko's mother, E. Subsequently, Ms. Hayduscko stopped the nursing services provided at the facility due to financial reasons. Ms. Hayduscko hired her to continue to provide the same services she previously provided while working for M.E.A. Healthcare Services. She cared for E. from 8 a.m. to 3 p.m. at the Sunrise Assisted Living home and was paid approximately $460.00 per week by Ms. Hayduscko. She was not provided with a 1099 or W-2 form. Ms. Hayduscko set her hours, directed her what do to, and was able to terminate her. If the claimant wanted to take a day off, she would have to clear it first with Ms. Hayduscko. She worked 42 hours per week for Ms. Hayduscko. The claimant also cared for another patient at Sunrise Assisted Living and continued to work for M.E.A. Healthcare Services.
On cross-examination, the claimant testified that she underwent training and took classes to become a licensed home health aide. Additional training is required to maintain her license. She first started caring for E. a year prior to the accident. She was assigned to care for E. through M.E.A. Healthcare Services. She later cared for E. privately at Sunrise Assisted Living, which was approximately seven or eight months before the accident. Ms. Hayduscko did not pay for any of her training or for any equipment. Other home health aides cared for E. when claimant was not working. During the time she worked for Ms. Hayduscko, she also cared for another patient. Ms. Hayduscko never told her that she was unable to care for other patients or require the claimant to wear a special uniform. She filed tax returns in 2007 for her employment with M.E.A. Healthcare Services, but did not file tax returns for her work with Ms. Hayduscko. She was not provided with any healthcare or pension benefits through her work with Ms. Hayduscko. The claimant confirmed that she was never employed by Sunrise Assisted Living. In response to questions posed by the WCLJ, the claimant testified that the care she provided for E. included bathing her, tidying up her bed and room, vacuuming, taking her to breakfast and lunch, and answering telephone calls. She was not paid when she had to take days off.
At a hearing on June 23, 2009, Ms. Hayduscko testified that she met the claimant through M.E.A. Healthcare Services, which is an employment agency for home healthcare aides. The claimant was assigned to care for her mother, E., at Sunrise Assisted Living through the agency in February of 2005. Care through M.E.A. Healthcare Services ended in October of 2006 as her mother's insurance benefits were up, and an arrangement was made for claimant to continue providing the same care. The claimant did not receive any vacation days or sick time. If the claimant needed time off, she would tell Mr. Hayduscko and another home health aide would work her shift. Ms. Hayduscko did not pay for any training or renewing of the claimant's license. With respect to job duties, the claimant was responsible for assistance with activities of daily living based on what her mother needed at the time. Ms. Hayduscko did not supervise the claimant. Ms. Hayduscko was a teacher and had never worked in the healthcare industry.
On cross-examination, Ms. Hayduscko testified that the claimant worked six days a week, seven hours per day and was paid by check. Ms. Hayduscko stated that the claimant chose her work hours. When the claimant needed to take time off from work, the other home health aides would make arrangements between themselves and would tell her who was going to work the claimant's shift. Ms. Hayduscko testified that she had power of attorney and paid the claimant and the other home health aides with her mother's funds. All of the services provided by the claimant were at Sunrise Assisted Living. The claimant's job duties as a home health aide included assisting E. if she needed help going to the bathroom or to the table. The claimant would also bring food to E. and help her dress and bathe. Otherwise, Sunrise Assisted Living was responsible for housekeeping and preparing meals. In addition, claimant would accompany her and her mother to E.'s doctor appointments. During the time the claimant cared for E., Ms. Hayduscko did not prohibit the claimant from caring for any other patients.
A manager of M.E.A. Healthcare Services testified that the claimant cared for E. through M.E.A. until 2006. The manager was unaware if the claimant ever cared for E. following 2006.
The executive director of Sunrise Senior Living testified that E. was a resident at Sunrise for three years. Sunrise Senior Living employs home health aides to assist and care for residents. Sunrise Senior Living also permits families to hire their own private home health aides. The executive director testified that Sunrise Senior Living has no control over the private home health aides. If a family decides to use a private home health aide, a family member is required to sign a waiver stating that the family hired a private aide and is responsible for the aide's certification and license requirements.
In a decision filed on June 26, 2009, the WCLJ continued the case for summations and the outcome of the claimant's third-party action.
Claimant's third-party action was ultimately settled in 2013 with the consent of the Uninsured Employers' Fund (UEF). The case was restored to the hearing calendar to address all outstanding issues, including employer-employee relationship. The parties, including the claimant and Ms. Hayduscko, ultimately filed position papers in 2017, and decision was reserved.
In a reserved decision filed October 23, 2017, the WCLJ found that the claimant was an independent contractor and disallowed this claim. Since her work in WCB #40708094 was as an independent contractor, the WCLJ found that this employment could not be considered for WCL § 14(6) purposes, and that there was no concurrent employment in WCB #40705174. In reaching his decision, the WCLJ stated:
After a review of the record and a preponderance of the evidence, it is concluded the claimant was an independent contractor and not an employee of Ms. Hayduscko. The claimant is a trained and licensed home health aide with many years of experience. She continued her training and maintained her license on her own. Her line of work was a separate calling from that of Ms. Hayduscko, a teacher with no training in the home care industry and who did not run an agency in that field. From her general experience and from her prior experience caring for [Ms. Hayduscko's mother], the claimant knew how to care for this client. All indications are that the claimant performed her services free from the direction or control over the means and manner of providing care for [Ms. Hayduscko's mother]. Occasionally being told that she would be accompanying [Ms. Hayduscko's mother] on trips to the doctor or bank does not alter this conclusion. It is noted that the claimant maintained her licensing on her own and had the right to perform similar services for others. Considering the claimant may have had other private clients while working as a home health aide, it could be expected the claimant would carry her own accident insurance. While it would not have been dispositive on the issue, by not designating this income on her taxes, it cannot be determined if the claimant considered herself as self-employed or an employee for tax purposes.
The claimant filed an application for administrative review on November 22, 2017, arguing that the claimant was an employee at the time of her June 9, 2007, accident. Claimant argued that her employment as a full-time home health aide for Ms. Hayduscko fell within the definition of a "domestic worker" under WCL § 2(4). In addition, the claimant requested that the finding of no concurrent employment in WCB #40705174 be reversed.
M.E.A. Healthcare Services filed a rebuttal on December 15, 2017, arguing that the WCLJ was correct in finding no concurrent employment existed for WCB #40705174 and thus WCL § 14(6) does not apply.
The Special Funds Group (SFG) filed a rebuttal on December 19, 2017, arguing that the record supported the WCLJ's finding that the claimant was an independent contractor. The SFG asserted that there was no employer-employee relationship between the claimant and Ms. Hayduscko. Ms. Hayduscko was a teacher by profession and she did not provide the claimant with any equipment or control the manner in which the claimant performed her duties as a home health aide. The SFG further argued that the claimant could not be considered a domestic worker for the purposes of establishing an employment relationship as the assisted living facility provided meals, laundry services, and housekeeping.
The alleged uninsured employer, Ms. Hayduscko, filed a rebuttal on December 21, 2017, requesting that the reserved decision be affirmed as the record supported the finding that the claimant was an independent contractor.
The carrier for Sunrise Senior Living filed a rebuttal on December 22, 2017, arguing that the WCLJ properly found no employer-employee relationship between the claimant and Sunrise on the date of the accident.
WCL § 10(1) requires that every employer "secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment without regard to fault as a cause of the injury ... [emphasis added]."
For purposes of the Workers' Compensation Law, the term "employee" does "not include domestic servants except as provided in section three of this chapter, and except where the employer has elected to bring such employees under the law by securing compensation in accordance with the terms of section fifty of this chapter" (WCL § 2).
"Compensation shall be payable for injuries or death incurred by employees in the following employments: Domestic workers, other than those employed on farms, employed by the same employer for a minimum of forty hours per week" (WCL § 3[Group 12]).
Here, because the evidence in the record reflects that claimant worked for Ms. Hayduscko for more than 40 hours per week, if the claimant is found to be a "domestic worker" as that term is used in the Workers' Compensation Law, she will be found to be an employee of Ms. Hayduscko (see Matter of Williams v Geddes, 125 AD2d 796 ).
There is no statutory definition of the term "domestic worker." "The New York Workers Compensation and Employers Liability Manual (January 2000 ed.) generally describes domestic workers as 'employees engaged exclusively in household or domestic work performed principally inside the residence,' such as 'a cook, housekeeper, laundry worker, maid, butler, companion, nurse and baby-sitter,' or 'outside the residence,' such as 'a private chauffeur and a gardener'" (Mark & Monica Gray, 2012 NY Wrk Comp G0178938).
The Board has previously found home health aides to be domestic workers (Matter of Lillian Y. Anderson, 2014 NY Wrk Comp G0575906; Matter of Sanford Ostrofsky, 2017 NY Wrk Comp G1405260).
In this case (WCB #40708094), claimant was a licensed home health aide who originally cared for Ms. Hayduscko's mother, E., as an employee of M.E.A. Healthcare Services, but was later retained directly by Ms. Hayduscko to continue providing the same services. The duties performed by claimant involved personal care of E. and light housekeeping, including tidying up E.'s bed and room, vacuuming and answering telephone calls. These duties were performed in the assisted living facility where E. resided and are consistent with those performed by a "domestic worker," as that term is commonly used.
Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant was employed as a domestic worker by Clare Hayduscko and that her accident arose out of and in the course of her employment. This claim is established for an accidental injury to claimant's right ankle occurring on June 9, 2007.
The Full Board finds that Clare Hayduscko was claimant's employer and was uninsured on the date of accident, in violation of WCL § 50, and is liable for 100% of awards and assessments pursuant to WCL § 26-a. WCL § 26-a(2)(b) provides that:
For the purpose of establishing and maintaining this fund, the board, upon rendering a decision with respect to any claim for compensation under this chapter that the employer liable therefor has failed to secure the payment of compensation with respect thereto in accordance with section fifty of this chapter, shall (emphasis added) impose an assessment in the sum of one thousand dollars for each ten day period of non-compliance or a sum not in excess of two times the amount of the cost of compensation for its payroll for the period of such failure against the employer and direct its payment into the fund in connection with each such claim wherein injury shall have occurred on or after the first of May, , or in death cases where death as the result of injury shall have occurred on or after said date.
Clare Hayduscko is hereby assessed a penalty of $250.00 pursuant to WCL § 26-a(2)(b), which represents the Full Board's estimation of two times the amount of the cost of compensation for the uninsured employer's payroll for the period of no insurance.
Because WCB #40708094 is now established, concurrent employment applies WCB #40705174 and claimant's average weekly should be modified accordingly in that claim. Both cases are continued for development of the record on all outstanding issues, including claimant's average weekly wage in both claims.
ACCORDINGLY, the WCLJ decision filed October 23, 2017, is REVERSED. This claim is established for an accidental injury to claimant' right ankle occurring on June 9, 2007. Clare Hayduscko is found to be claimant's employer. Clare Hayduscko was uninsured on the date of accident and a penalty of $250.00 is assessed against Ms. Hayduscko pursuant to WCL § 26-a(2)(b). The case is continued.