Case # G0104510
Date of Accident: 02/18/2009
District Office: NYC
Employer: Xin Fu Zhou
Carrier: *** Carrier Undetermined ***
Carrier ID No.: W000004
Carrier Case No.:
Date of Filing of Decision: 09/10/2012
Claimant's Attorney: Bangel, Cohen & Falconetti LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on July 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 21, 2011.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. whether the evidence supports the establishment of an employee-employer relationship between the claimant and AAAAA Home Improvement Inc. (5A);
2. whether the evidence supports a finding of an average weekly wage (AWW) of $450.00, without prejudice;
3. whether the evidence supports the establishment of the claim for the claimant's neck and left shoulder.

In an amended decision filed on September 23, 2010, the Workers' Compensation Law Judge (WCLJ) found that an employee-employer relationship existed between the claimant and 5A, that 5A was uninsured on the date of the accident, and established the case for the claimant's left hand, neck and left shoulder. The WCLJ also set the claimant's AWW at $450.00, without prejudice, and made awards.

The Board Panel majority modified the WCLJ's decision to find that the claim for the sites of the neck and left shoulder are not supported by sufficient medical evidence and thus disallowed. The Board Panel majority agreed with the balance of the WCLJ's decision.

The dissenting Board Panel member would also establish the claim for the neck and left shoulder.

On November 21, 2011, the claimant filed a request for Mandatory Full Board Review, arguing that claim should also be established for consequential injuries to the neck and left shoulder. In rebuttal, the employer asserts that the majority was correct in finding that the claim should not be established for the neck and left shoulder as the doctors' reports fail to explain the mechanism of injury for any causally related neck or left shoulder condition.

On November 21, 2011, the employer also filed a request for Mandatory Full Board Review arguing that the evidence in this case does not support a finding that the claimant was an employee of 5A, and that the claimant was an independent contractor. The employer further asserts that there was no reasonable basis upon which the WCLJ set the claimant's AWW at $450.00 per week as the claimant has not produced any tax returns.

In rebuttal, the claimant argues that he was an employee of 5A.

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

FACTS

The claimant filed a C-3 (Employee Claim) stating that on February 18, 2009, he was working on stairs with a handsaw and the handsaw blade broke cutting his left hand.

At the hearing on August 2, 2010, the claimant testified via a translator that on February 18, 2009, he was performing carpentry work. He was hired by his boss (hereinafter "owner"). While working on stairs and using a saw, the saw blade flew out and cut him on his left thumb, left index finger and above the fingers. He also sustained a broken bone. The claimant was using the owner's circular saw at the time. He was paid from $125.00 to $150.00 in cash per day and he normally worked six days per week. He stated that he previously met the owner at a place where people who need a job go. He had carpentry experience and he previously worked as a carpenter in China. He did not have tools. He was hired by his boss who gave him all the tools to use. He had worked at the location for about two weeks prior to his injury. He was hired to replace broken stairs on a staircase and work on a bathroom in a home in Flushing. The claimant stated that the owner drove him to the job site in Flushing.

At the hearing on August 2, 2010, the owner of 5A testified via a translator that he met the claimant in 2007, when the owner purchased a condominium that needed renovations. He went to an employment agency and found the claimant. The claimant told him that he was a carpentry master. The owner acknowledged that he was familiar with the location in Flushing where the claimant was hurt. The claimant was hired to perform work on stairs, a bathroom, and on heater covers. The job was under contract by 5A. The owner testified that he and a co-owner owned 5A. The owner stated that he hired the claimant as a master or senior carpenter. He paid the claimant in cash according to the work volume, and had paid the claimant approximately $3,000.00 in total. Work began on the job on February 2, 2009. The claimant brought small hand tools to the work site which he was allowed to use. The owner testified that he purchased the materials for the job. 5A supplied the tools. He testified that 5A had subcontractors. He also stated that the 5A had an oral agreement with the claimant. The witness acknowledged driving the claimant to work. The claimant had his own saw and hammer. The claimant also used tools belonging to the 5A.

The owner and co-owner testified at a hearing on September 3, 2010, concerning their business relationship and their association with 5A.

Emergency Room Physician notes from the date of the accident, February 18, 2009, indicate that the claimant presented with a hand laceration and no other injuries. A radiology examination report shows a fracture of the left first metacarpal.

In reports for treatment beginning March 31, 2009, Dr. Park, a physiatrist, provided a diagnostic impression of status post work-related accident with acute traumatic strain-sprain of the cervical paraspinal muscles and ligaments, post-traumatic left shoulder strain-sprain, and pain and disability of the left hand secondary to fracture of the first metacarpal bone with two pins and multiple tendon laceration. In his reports, Dr. Park indicates that the claimant had a work related accident and that "since then, the patient has had complaints of neck pain." He further states, "in addition, the patient has had complaints of pain in the left shoulder and the left hand (thumb)." The report further indicates that the claimant's short arm cast was replaced by a splint in mid-March 2009. Dr. Park prescribed the claimant with a course of physical therapy.

Dr. Park testified by deposition on October 12, 2010, that he attributed the shoulder and neck pain to possibly being from the claimant's use of a sling for his hand injury. However, he did not mention this in his reports because "he didn't know, I think as an MD I assume, reasonable medical certainty." (Depo. transcript, 10/12/10, p.14). However, Dr. Park conceded that he did not know how long the claimant's arm was in a sling or whether the claimant had even used a sling at all, as it was not in the medical history given to him. He went on to state that immobility of the claimant's arm even without a sling may have been a factor as to the cause of stiffness in the claimant's left shoulder. Dr. Park further conceded that a "frozen shoulder condition" could be caused by many things, such as "damage to soft tissue of the shoulder or immobilization for a while, whatever, mini spot injuries." (Depo. transcript, 10/12/10, p. 17). There had been no diagnostic testing of the claimant's shoulder or neck. Dr. Park referred the claimant to an orthopedic surgeon, Dr. Sun.

The Board file contains two medical reports from Dr. Sun. In a report dated November 11, 2009, Dr. Sun indicates that the claimant's chief complaint is left hand pain, and that the claimant's left shoulder has point tenderness at the anterior aspect with elevation about 90 degrees. The report further indicates that authorization for an MRI of the claimant's left shoulder is pending.

In an independent medical examination report dated February 4, 2010, Dr. Ross indicated in the claimant's history that the claimant had seen Dr. Sun, an orthopedist, and that Dr. Sun noted that in addition to the left hand problems, the claimant had developed left shoulder stiffness and neck pain. The history also notes that Dr. Sun proposed that the claimant have a left shoulder MRI and possible left shoulder arthroscopy. Dr. Ross conducted an orthopedic examination of the claimant's cervical spine, left shoulder, left wrist/hand, and left fingers. Dr. Ross' impression was as follows: normal orthopedic examination of the cervical spine; normal orthopedic examination of the left shoulder; Status post open reduction and internal fixation for first left metacarpal transverse fracture. As to causal relationship, Dr. Ross indicated that "based upon the history provided and review of submitted medical records, there is a causal relationship between the accident of record and [the claimant's] reported neck, left shoulder, and left hand injuries."

On February 15, 2010, Dr. Ross issued an addendum to his report indicating that the claimant has residual impairment of the left index finger consistent with mild temporary partial disability and has no other causally related injuries or impairments. Dr. Ross also indicated that there was no indication for any diagnostic studies, including MRI of the left shoulder.

Dr. Ross testified by deposition on October 19, 2010, that he examined the claimant's cervical spine and found no abnormalities or neurological deficits. Dr. Ross found no sign of impingement with respect to the claimant's left shoulder. Dr. Ross further indicated that a "frozen shoulder" occurs by way of an injury to the shoulder itself, and has nothing to do with a sling. (Depo. transcript, 10/19/10, p. 11). Dr. Ross ultimately opined that the claimant sustained an injury to his hand and no injury to the shoulder or neck. Dr. Ross further opined that immobilization of the claimant's left hand alone would not have resulted in a left shoulder and neck condition. (Depo. transcript, 10/19/10, p. 12).

By an amended decision filed September 23, 2010, the WCLJ that claimant sustained an accidental injury to his left hand, neck and left shoulder, on February 18, 2009, which arose out of and in the course of his employment with 5A. The WCLJ found that 5A was not insured at the time of the accident and that the owner and co-owner "were in partnership" in 5A. The WCLJ set the average weekly wage at $450.00, without prejudice, and made awards.

LEGAL ANALYSIS

Employer-Employee Relationship

"Whether an employer-employee relationship exists is a factual issue for the Board…The relevant factors in making 'such a finding include the right to control the work and set the work schedule, the method of payment, the furnishing of equipment, the right to discharge and the relative nature of the work at issue' (Matter of Bugaj v Great Am. Transp., Inc., 20 AD3d 612 [2005]). No one factor is dispositive. (Matter of Brown v City of Rome, 66 AD3d 1092 [2009])."

Here, the owner of 5A testified that he hired claimant at an employment agency, drove him to job site, and provided tools and materials at the job site. Accordingly, the overwhelming preponderance of the evidence in the record supports a finding that claimant was an employee of 5A at the time of his injury

The New York State Construction Industry Fair Play Act (Fair Play Act) also provides guidance on the issue of whether the claimant is an employee or an independent contractor/separate business entity. Because claimant's accident predates the enactment of the Fair Play Act, the act does not apply to this claim. However, it is instructive to note that had the act been in effect, claimant would still be found to be an employee of AAA.

The Fair Play Act (Chapter 418 of the Laws of 2010) added a new Article 25-B to the Labor Law that establishes a presumption of employment in the construction industry. The Act provides that any person performing services for a contractor is presumed to be an employee, unless that person qualifies as an "independent contractor" as defined by Labor Law § 861-c(1) or as "a separate business entity" as defined by Labor Law § 861-c(2).

In this context, an "independent contractor" is a person who is working under circumstances that meet all of the following criteria: "(a) the individual is free from control and direction in performing the job, both under his or her contract and in fact; (b) the service must be performed outside the usual course of business for which the service is performed; and (c) the individual is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue" (Labor Law § 861-c[1]).

A "separate business entity" is any entity (which also can be an individual worker) that meets every one of 12 specific criteria that are listed in Labor Law § 861-c (2). A separate business entity is deemed to be a contractor and is subject to all of the provisions of Labor Law Article 25-B.

The record in this case clearly shows sufficient control by 5A over to the claimant to preclude a finding that claimant was an independent contractor. Also, the employer has failed to prove that claimant has met any of the 12 criteria to be found a separate business entity.

Claimant's AWW

The owner's testimony was unclear as to how much the claimant was paid per diem. He testified that he paid the claimant according to "work volume." However, he also testified that he paid the claimant $3,000.00 for the job on which the claimant was injured, and that such job commenced February 2, 2009. The claimant was injured on February 18, 2009. The claimant has not submitted any pay stubs or tax forms. It is undisputed that the claimant was paid in cash. The claimant testified that he was paid $125 to $150.00 per day and worked six days per week.

Accordingly, given the discrepancies and lack of documentation, setting AWW at a tentative rate of $450.00, without prejudice, is appropriate pending further development of the record on this issue.

Neck and Left Shoulder

The record contains the credible testimony of the claimant, as well as the medical reports of his treating physician, Dr. Park, who diagnosed causally related cervical and left shoulder injuries in addition to the laceration and broken bone in his left hand. The doctor treated the claimant for these injuries since March 31, 2009, and testified that the claimant's left shoulder and neck complaints were causally related to his work related accident. Upon cross-examination, the doctor was asked to elaborate as to how the neck and left shoulder injuries could have been caused by the accident. Dr. Park testified that the claimant had had his arm in a sling since his release from the hospital and that the sling and its immobilization of the left arm and shoulder caused the neck and left shoulder conditions.

The carrier's consultant, Dr. Ross, in his February 3, 2010 IME report, diagnosed the claimant with causally related neck and left shoulder conditions. However, in his subsequent addendum report and in his testimony, Dr. Ross changed his opinion, finding that claimant's neck and back injuries were not causally related.

While there is conflicting medical evidence in the record concerning the causal relationship of claimant's neck and left shoulder injuries, the Full Board finds that the preponderance of the credible evidence in the record supports a finding that those conditions were consequential to claimant's February 18, 2009 left hand injury.

CONCLUSION

ACCORDINGLY, the WCLJ amended decision filed September 23, 2010, is AFFIRMED. No further action is planned by the Board at this time.