The Full Board, at its meeting on June 18, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on December 7, 2012.
The issue presented for Mandatory Full Board Review is whether New York has jurisdiction over this claim.
In a notice of decision filed on December 18, 2011, the Workers' Compensation Law Judge (WCLJ) found that New York State has jurisdiction.
The Board Panel majority agreed with the WCLJ's finding that New York has jurisdiction over the claimant's claim.
The dissenting Board Panel member found that although New York may take jurisdiction in this case, it is not mandated that it do so. The dissenting Board Panel member further found that other states have as much of a nexus as New York, if not more, to assume jurisdiction, and that the Board should not accept jurisdiction where it more appropriately falls to another state.
On December 20, 2012, the carrier filed an application for Mandatory Full Board Review, arguing that the preponderance of the evidence in the record establishes that the claimant was injured in New Hampshire; the employer had no contact with the claimant in New York; the claimant's work was controlled in New Hampshire; and the employer's only contact was with the New Hampshire union hall. Therefore, the carrier argues that there was no basis upon which to find subject matter jurisdiction in New York.
On January 15, 2013, the claimant filed a rebuttal, asserting that the evidence in the record establishes that there were sufficient contacts with the State of New York to sustain a finding of New York jurisdiction.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case has been established for a low back injury, resulting from a work-related accident which occurred on April 8, 2011, when the claimant was grinding pipe supports to facilitate the removal of a valve.
In a C-3 (Employee Claim) dated May 6, 2011, the claimant, a New York resident, alleges that on April 8, 2011, he injured his back in the course of his employment as a steamfitter while he was grinding pipe supports to facilitate the removal of a valve at the Seabrook Station nuclear power plant in New Hampshire. The claimant indicated that his injury resulted from working in awkward positions for prolonged periods of time throughout his shift. The carrier controverted this claim, contending that the New York State Workers' Compensation Board (Board) does not have jurisdiction over this claim, that claimant did not sustain an accidental injury, and that claimant's back injury is not causally related to his employment.
At a hearing on October 13, 2011, the claimant testified that he is a member of the Plumbers and Steamfitters Union, Local 22, and that he specializes in repairing valves in nuclear plants. The claimant described the process of being hired out of his usual vicinity in western New York to work at a New Hampshire nuclear plant. Specifically, the claimant testified that his union had a local in New Hampshire, Local 131, and that the employer hired workers out of Local 131 to work the job at the New Hampshire nuclear plant. According to the claimant, when a contractor hires out of a union hall, if the local union doesn't have enough workers to complete the job, the union outsources the work from their local to other locals. The claimant testified that in this case, Local 131 did not have enough "valve techs" with the claimant's expertise to complete the job. As a result, Local 131 solicited other nearby locals, including Local 22, seeking "valve techs" with the claimant's training and experience to work the job. The claimant testified that he was hired by the employer, a contractor who was working at the New Hampshire site. The claimant testified that he has performed work at nuclear power plants in at least 10 different states. With respect to his benefits package, the claimant testified that his local provides his health and pension benefits; that the employer pays into the New Hampshire local; and the New Hampshire local pays the New York based local. The claimant added that in his trade, there is an understanding that "the money follows the man," to avoid union members from losing their benefits when they work at jobs that are geographically removed from their own local (Hearing Minutes 10/13/11, pg. 7). With respect to his compensation, the claimant testified that the employer paid him and withheld certain monies that went to the claimant's local. The claimant testified that he was not sure if the employer deducted New York State taxes from his paycheck, but that if New York State taxes weren't taken out by the employer, he would end up having to pay the taxes in a lump sum at the end of the year. The claimant's attorney noted on the record that a pay stub from that time showed that no New York State taxes were taken out. The claimant testified that he never filled out a job application to obtain his position, but that his personal history questionnaire was submitted to the plant where he was selected to work.
During the hearing on October 13, 2011, the business agent for Local 22 testified that he is responsible for setting the members up with work. The witness further testified that he dispatches union members all over the country to perform work, and that he is notified of such "out of area" jobs through "sister and brother locals" (id. at 20). The witness confirmed that he dispatched the claimant to work at the nuclear power plant in New Hampshire. The witness testified that when members work outside of their jurisdiction benefits paid go back to the member's local. The witness further testified that in this case, the benefits paid went through the New Hampshire local to the national pension fund, and from there, the benefits were sent to Local 22 in the claimant's name. The witness testified that he was never contacted by the employer, but that he was contacted by Local 131. The witness further testified that these types of arrangements are generally handled "union through union" (id. at 22).
During the hearing on October 13, 2011, the employer's general manager testified that the employer is a maintenance supplier, mostly for nuclear and fossil fuel power plants. The witness testified that he was unsure if the employer was currently performing any work in plants located in the State of New York. The witness further testified that the employer does not maintain any corporate offices in New York. The witness testified that in order to staff the New Hampshire nuclear plant job, the employer utilized two types of workers, union and non-union workers. The witness further testified that in order to obtain the union workers, the employer notified the local unions that it has agreements with the positions that the employer was seeking to fill, including Local 131. The witness testified that the claimant's work was directed by a union general foreman employed by the employer, and that the claimant was paid through a Connecticut bank account with checks cut in North Carolina. The witness acknowledged that the employer pays for travel and per diem for workers who live more than 50 miles from the work site.
The WCLJ found that Workers' Compensation Law (WCL) § 21 presumes that New York has jurisdiction in this case, and that the facts of this case establish that sufficient contacts exist to give New York jurisdiction over this matter.
"[W]hen determining the presence or absence of jurisdiction the appropriate test requires a determination as to the location of the employment. The fact that work is performed outside the State in a relatively restricted geographical location is a significant consideration and under some circumstances may prove decisive. Other circumstances, however, are important and should be considered. Among these factors which may go to make up a New York State employment are a hiring in New York, control of employment from an office located in New York, payment of out-of-State expenses by the employer and an understanding that the employee is to return to New York after out-of-State assignments. The fact that the employee is a resident and that compensation insurance was procured here are also pertinent" (Matter of Nashko v Standard Water Proofing Co., 4 NY2d 199  [citations omitted]).
In the present case, the record establishes that: the employer was aware that it would be hiring out-of-state workers to work the job at the New Hampshire nuclear plant; the claimant resided in New York; the claimant was hired from New York; the employer paid the claimant for his travel and provided him with a per diem; and the claimant would be returning to New York upon the end of his out-of-state assignment. The record also establishes that while the employer used the New Hampshire Local 131 union hall to recruit necessary workers, the union was acting as an agent of the employer during the hiring process.
Therefore, the Full Board finds, based upon a preponderance of the evidence, that New York State has jurisdiction over the claimant's claim.
ACCORDINGLY, the WCLJ decision filed on December 18, 2011, is AFFIRMED. No further action is planned by the Board at this time.