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Case # 50710083
Date of Accident: August 7, 2006
District Office: Albany
Employer: Gaetansa Frascello DBA
Carrier: Norguard Insurance Co.
Carrier ID No.: W160659
Carrier Case No.: GAWC702385-001
Date of Filing of Decision: December 7, 2010
Claimant's Attorney: Dennis Kenny
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on October 19, 2010, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on January 25, 2010.

ISSUE

The issue presented for Full Board Review is whether the claimant was an employee of the alleged employer at the time of his August 7, 2006, accident.

In a reserved decision filed on August 5, 2009, the Workers' Compensation Law Judge (WCLJ) found that the claimant was an employee; established the case for injuries to the claimant's neck, back, and left knee; and authorized treatment. The WCLJ subsequently set the claimant's average weekly wage, noted that Workers' Compensation Law (WCL) § 29 issues had been raised, and designated the case for no further action in a decision filed on September 14, 2009.

The majority of the Board Panel disagreed with the WCLJ on the issue of witness credibility; found the claimant's version of events to be incredible, particularly the assertion that he was going to be paid for 10 jobs with a $250,000.00 beach house in Florida; noted that the claimant's testimony was also contradicted by the contemporaneous police report; found no employer-employee relationship; disallowed the claim; and found that the other issues raised on appeal (average weekly wage and WCL § 29) need not be addressed.

The dissenting Board Panel member found that the employer's lay witnesses were not believable; that the WCLJ's determination of credibility was reasonable; that the majority failed to address the basis for the WCLJ's decision; and that the majority should have deferred to the WCLJ's credibility determination.

In his application for Full Board Review, the claimant asserts that the WCLJ is in the best position to judge witness credibility, and that the Board is constrained to affirm the WCLJ's findings absent any errors of fact and/or law. The claimant further contends that his testimony was credible, and that the WCLJ properly found the lay witnesses not to be credible, whereby the establishment of the case should have been affirmed.

In rebuttal, the carrier contends that the Board Panel's decision is based upon substantial evidence, as the claimant's testimony was completely unbelievable, and was consistently contradicted by the credible lay witnesses.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

On August 24, 2007, the alleged employer, a New York based general contractor, filed a form C-2, wherein it indicated that the claimant had advised the employer that he had been struck by a motor vehicle while crossing the street at a Home Depot job site in Connecticut on August 8, 2006 [sic - August 7, 2006], sustaining multiple injuries. The carrier subsequently filed a form C-7 on August 31, 2006, wherein it controverted the claim on various grounds, including employer-employee relationship.

By form C-3 filed on September 24, 2007, the claimant reported that he had injured his neck, back, knee, and head when he was hit by a car while working at 6:00 p.m. on August 6, 2006 [sic - August 7, 2006].

The police report from the claimant's August 7, 2006 accident noted that an anonymous call regarding a pedestrian versus vehicle accident had been received at 6:04 p.m. on Monday, August 7, 2006. The responding officer found the claimant dressed in shorts and a tee shirt in the parking lot of a diner. The claimant reported that he had been crossing the street when a black SUV driven by a woman hit him in the left shoulder with a side mirror. The claimant denied sustaining any injuries, but the driver stopped and "agreed to pay him $50.00 as compensation." The police report indicates that the claimant refused treatment and signed a refusal form.

At the hearing held on March 30, 2009, the accident date was corrected to be August 7, 2006. The carrier raised all C-7 issues, and the case was continued for testimony from the claimant and an employer witness.

The claimant testified via telephone on April 28, 2009, as follows. In August 2006, he was working for Dennis Frascello, F&B Construction, doing plumbing work at a Home Depot in Connecticut. He got the job through the owner's brother, Frank. The employer was broke, so he was not paid for his work. Instead, the employer agreed to give him his beach house in Florida, where the claimant is from, and where his wife and children live. The house was valued at $225,000.00 to $250,000.00. He had previously worked on remodeling the house in Florida for six or eight weeks, and then moved to New York while his family stayed in Florida. He lived in New York for four months and stayed at a property owned by the employer, who owns "millions [of] dollars in property." During the Home Depot job in Connecticut, the claimant stayed with the employer in a Days Inn located across the street from the job site. In order to help pay for their stay, the claimant performed plumbing work for the hotel.

On August 7, 2006, he was struck by an SUV going 40 miles per hour when he was walking to a store next to the Home Depot job site between 6:00 p.m. and 7:00 p.m. They were still working at the time of the accident, as it was still light outside. The SUV struck his "whole left side" and spun him around. He sustained a concussion, and "was pretty messed up." He also hurt his back and leg. He declined to go to the hospital because "he was very confused and disoriented." Instead, he went back to the hotel and went to sleep. He did not remember speaking with the driver, he did not remember getting $50.00 from the driver, and he did not remember speaking with the police. He did remember telling the police officer that he had not been injured. He began vomiting the next day and sought medical treatment. He had black and blue marks from the bottom of his foot to the groin on his left leg. The doctor thought he was on drugs and tested his urine; he subsequently went to the hospital.

The Home Depot job took seven months and was completed in September. He went with the employer to the next job in Stamford, Connecticut, but he was still unable to work and went to a hospital there. He had two CAT scans on his head, and X-rays were taken of his leg. He had his left leg operated on four months ago, and he was receiving physical therapy for his back. He has not worked since the accident because he "just can't function." However, he then acknowledged that he worked on a job in Buffalo, standing behind a machine that cuts concrete, but he was only there for a short time due to headaches. He had a problem with the Buffalo police because he lost his identification at the Days Inn in Connecticut. He missed a Court date in Florida for violating a restraining order (involving his wife) and was subsequently incarcerated. The owner's friend, Rick M., was another contractor at the Home Depot site, and he asked the claimant to stay off the job site after he got injured.

Dennis Frascello, the owner of F & B Construction, testified in person on April 28, 2009, as follows. He has a nephew, a brother, and a father named Frank. The claimant never worked for him, and the claimant never stayed with him. The claimant is a friend of his nephew. At his nephew's request, his father let the claimant stay in a camper trailer on his father's property. The property is located on Five Mile Woods Road in Catskill, New York. When his father left the claimant in the camper, the claimant kept starting fires and his father could not trust the claimant to leave him alone. The police were called to the fires, and there is documentation. However, Mr. Frascello's father let the claimant stay because the claimant had no place to go, and his father felt sorry for him. His father is retired but would travel to the job sites. The claimant was not supposed to be on job sites, but he would have to come along with his father. The claimant came with Mr. Frascello's father to the Home Depot job site, but they kept kicking him off of the property. They even called the police "several times" because the claimant kept coming back. The claimant also apparently visited several local real estate agents claiming to represent Home Depot in the search for some commercial property to buy, and the real estate agents came to the work site looking for the claimant. The claimant's actions caused "all kinds of chaos" on the job site. He became aware that the claimant was struck by a vehicle by the foreman on the job site. The job at the Home Depot lasted six to eight weeks. The claimant also accompanied Mr. Frascello's father to the next job site in Buffalo, where he again had to call the police. He does own a small two-bedroom house in Daytona, Florida, but he denied that there was ever any agreement for him to give the claimant a $250,000.00 house in Florida. He also denied that the claimant ever performed any work on his Florida property. His father eventually gave the claimant a ticket to go back to Florida, and he has not seen him since.

On May 28, 2009, Frank Frascello (Dennis' father) testified in person as follows. His grandson, who lives in Florida, asked if the claimant could live in the trailer on his property in Catskill because the claimant had no where else to go. He later learned that the claimant was on probation in Florida for trying to stab his wife. He goes to the job site every day with his son, Dennis. He took the claimant with him because he could not trust the claimant to stay alone on the property because he started fires. Sometimes the claimant would run off and not return for a week. The claimant did travel with him to Florida after his wife died, where they stayed at Dennis's house, and he paid for the claimant's expenses. The claimant did not perform any work on the Florida house, and he never promised to give the claimant a house in Florida. When they were in Buffalo, the claimant left and went up to Canada. The claimant was good company until he got out of hand. The claimant never worked for Dennis on any of the job sites, and sometimes he was chased off the job site, especially when he was drinking too much. He and the claimant would often go to the mall together.

Alexander T. testified in person on May 28, 2009, as follows. The brothers Dennis and Frank Frascello are third generation plumbers. He worked for Dennis's brother Frank on the Home Depot job site in Connecticut. The claimant never worked for Dennis on any job that he was associated with. The claimant was not allowed on the Home Depot job site and would be kicked off the site by the general contractor, Rick. The claimant would hang out with Dennis's father, Frank, who did not work either, and the claimant "always smelled like alcohol." The claimant stayed with him for a few days once, in order to give Dennis' father "a little bit of a break," but he had to tell the claimant to leave.

The claimant briefly testified again via telephone on May 28, 2009, regarding his criminal record, which involved a 2003 charge in Florida involving a forged instrument; a 2005 conviction in Florida for petty theft; a 2005 charge in Florida for fraudulent use of a credit card (when he used his mother-in-law's card); a 2006 conviction in Florida for felony aggravated assault, which also resulted in charges of obstruction and resisting arrest; and a 1993 case in New Jersey involving aggravated assault. The claimant also testified regarding several civil lawsuits that had been brought against him in New Jersey when he had been a master plumber, indicating that they had all been resolved. The claimant stated that Rick M. was good friends with Dennis and would "lie for Dennis no matter what happens."

At the conclusion of the testimony on May 28, 2009, the WCLJ refused to admit the sworn and notarized statements of Rick M. and Walter O. into evidence, and continued the case for the parties to complete the medical depositions of Dr. Glassner and Dr. Fogler. Dr. Glassner was subsequently deposed on June 19, 2009, while Dr. Fogler was deposed on July 17, 2009.

Thereafter, the WCLJ issued a reserved decision on August 5, 2009, wherein she found that the live testimony of the three lay witnesses was uneven, erratic, and questionable; that the claimant's admissions during his telephone testimony regarding his criminal record enhanced his credibility; that the lay witnesses' explanation that the claimant was taken in out of kindness was not plausible given their testimony that he was mentally unstable and dangerous; and that the "only rational conclusion" was that the claimant was an employee. As a result, the WCLJ established the case and authorized treatment.

LEGAL ANALYSIS

The question of witness credibility is solely within the province of the Board, and the Board is not bound as a matter of law to accept the testimony of the claimant over other witnesses (Matter of Hinds v Western Union Telegraph Co., 33 AD2d 583 [1969]; Matter of Moore v J & R Vending Corp., 297 AD2d 887 [2002]; Matter of Strassberg v Hilton Hotel Corp., 299 AD2d 667 [2002]; Matter of Fedor-Leo v Broome County Sheriff's Dep't, 305 AD2d 760 [2003]). In addition, while the WCLJ's personal observations of witnesses during testimony is not without value, it is well established that the Board Panel is not bound by a WCLJ's credibility determination (Matter of Ridgeway v RGRTA Regional Transit Service, 68 AD3d 1219 [2009]; Matter of Jones v New York State Dep't of Correction, 35 AD3d 1025 [2006]; Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 [2003]).

A review of the record reveals that the three lay witnesses for the employer were consistent with their explanation as to how the claimant came to be injured on August 7, 2006. The claimant had encountered some serious legal troubles in Florida, and his friend (the nephew of the owner of F & B Construction) asked his retired grandfather for some help. The grandfather agreed to let the claimant live on his property in a trailer. The claimant's behavior subsequently became erratic, and the police were summoned several times due to the claimant setting fires. However, rather than render the claimant homeless, the grandfather brought him along on his daily activities as a companion, which often involved going to his son's work sites. The grandfather also brought the claimant along on trips to work sites that were out of town, including the Home Depot site in question. However, all of the employer's lay witnesses denied that the claimant ever performed any work for the employer at any of the job sites.

The Board Panel finds that a preponderance of the evidence in the record supports a finding that claimant was not an employee of F & B Construction and that the claimant did not sustain an accident arising out of an in the course of employment.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on August 5, 2009, is REVERSED to find that the claimant was not an employee and to disallow the claim. The WCLJ decision filed on September 14, 2009, is RESCINDED. No further action is planned by the Board at this time.