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Case # G0254890
Date of Accident: 03/22/2010
District Office: NYC
Employer: Balabusta Employment Agency
Carrier: *** Carrier Undetermined ***
Carrier ID No.: W000004
Carrier Case No.:
Date of Filing of Decision: 07/17/2013
Claimant's Attorney: Sher, Herman & Bellone, PC
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on June 18, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on August 3, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether there is sufficient evidence to find an employee-employer relationship between the claimant and either the homeowner or Balabusta Employment Agency.

In a decision filed on April 19, 2011, the Workers' Compensation Law Judge (WCLJ) found that there was no employer-employee relationship.

In a Memorandum of Decision filed on August 3, 2012, the Board Panel majority affirmed the WCLJ's decision, and disallowed the claim.

The dissenting Board Panel member would have reversed the WCLJ's decision and established the claim.

In their application for Mandatory Full Board Review filed on August 28, 2012, the attorneys for the claimant argue that to disallow the claim, the Board would have to find that the claimant's version of events is a complete fabrication. The claimant contends that she credibly testified and that the testimony of the alleged employer is not credible.

In a rebuttal filed with the Board on September 17, 2012, the Uninsured Employers Fund (UEF) requests that the Board affirm the decision of the Board Panel majority, and disallow the claim. The UEF argues that the Board Panel majority properly found that the claimant had failed to overcome her burden of proving that she had been injured through the course of her employment with either the employment agency or the homeowner.

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

FACTS

On April 16, 2010, the claimant filed a C-3 (Employee Claim) to report that she was injured at work on March 22, 2010. The claimant reported that while she was working as a housekeeper, she slipped off a ladder and fell. She alleged that she has injuries to her head, left shoulder, back, left leg, left elbow, and neck.

The record contains a narrative report of the claimant's initial treatment at Queens Chiropractic Associates, P.C., on April 16, 2010, which indicates that the claimant reported that while working as a housekeeper she was standing on a ladder and fell on her back.

M. Elmadboly, the claimant's physical therapist, submitted a report of the claimant's initial evaluation on April 19, 2010, which indicates that the claimant reported that while working as a cleaning lady, she fell off the ladder and hit the floor with her left side. She reported that she injured her left elbow, back, and left hip.

Dr. Brattner, a chiropractor in the Queens Chiropractic Associates group, submitted a C-4.0 report of examinations on several dates during the period from April 16, 2010, to May 3, 2010, and indicated that the claimant reported that she was injured when she fell while cleaning a wall on a ladder.

The record also contains a medical report from Dr. Jones of an examination on September 8, 2010, which indicates that the claimant reported through a translator that "she was going up a flight of stairs when she fell down six steps. She states she hit her head on the marble molding of a step, with a momentary loss of consciousness."

At the hearing held on April 14, 2011, the claimant testified that she had an accident on March 22, 2010, at the homeowner's house where she was working. She identified a person in the hearing room as the homeowner. Her job at the house was to clean the whole house. She obtained the employment from the owner of an employment agency, "Agency Balabusta." The owner of the agency sent the claimant to the job site. The claimant also identified the owner of the agency at the hearing. Prior to the March 22, 2010, accident, she worked at the home for one week and she began work on March 15th. The owner of the agency told her that she would be paid $8.00 per hour for the job and that she would be charged $400.00 by the agency for the employment. It was agreed that the claimant would pay the employment fee to the owner of the agency in installments of $100.00 per week. The owner of the agency gave the claimant the homeowner's name and address. The claimant worked between 10 and 12 hours per day. She was told to be at work by 9:30 but she was not told what time she was to leave; she stayed until she was told that she was finished. The house was very big and had three stories with many rooms and a basement. The claimant had to clean, mop, clean walls, and wash. The homeowner had two apartments that she rented out for two or three days after which the claimant cleaned the apartments. The claimant described her accident by stating that she was washing a wall and "when she had to go down to eat, when [she] went back up on that stairs … It was slippery and it fell." She stated that two of the homeowner's children were present at the time of the accident and the homeowner gave her a pill. The claimant had treatment on March 24th and March 25th at Bellevue Hospital. She was told by the homeowner that the homeowner was going to have the claimant stay because she was such a good employee. The owner of the agency just wrote down her information and filled out a form. The claimant signed the form, but she did not receive a copy of it. The only break she took during the day was for 10 minutes to eat. The claimant agreed that the owner of the agency sent her to the homeowner's house to be interviewed but stated that she already had the job. The claimant worked at the agency owner's house from 1:00 to 10:00 p.m. because the owner of the agency wanted to see how the claimant worked. She did not get paid for the work since it was "just a test." The claimant testified that she met the homeowner when she started working. She did not know how many bedrooms were in the house. The homeowner had six children.

At the hearing held on April 14, 2011, the owner of Balabusta Employment Agency testified that the claimant told her that she did not have money to pay for the employment agency application. The witness referred the claimant to the homeowner, and the claimant was to return to the witness and pay the application fee. The claimant never returned to complete her application or participate in any financial agreement. The witness stated that she never paid the claimant money and the claimant never paid her a fee for the application. The homeowner did not pay a fee to the witness. The witness had sent other workers in the past to the homeowner's home, and the homeowner typically would hire workers to clean once or twice a week for three or four hours. She stated that she never placed the claimant at the homeowner's house to work and that she just gave her an address for an interview.

At the hearing on April 14, 2011, the homeowner testified that she did not recall seeing the claimant prior to the hearing, and that she did not recall knowing a person with the claimant's name other than in conjunction with what she received from the Board. She denied that the claimant ever worked at her house. The witness stated that before Passover the prior year, she did call Balabusta Agency and another agency, they sent people to her and she interviewed those people. She did not recall interviewing the claimant and although she interviewed people, she did not hire anyone. She never paid Balabusta Agency a fee. She has occasionally hired help for short periods of time from Balabusta Agency. She acknowledged that she had an apartment in the basement of her home. Her home consists of seven bedrooms and the witness has 11 children. She stated that it was possible that she interviewed the claimant.

The parties provided oral summations, and then the WCLJ entered a decision into the record outside of the presence of the parties. The WCLJ found no employer-employee relationship, finding that the claimant was not credible. The WCLJ explained that the testimony supports only that an interview took place. The WCLJ further found that even if it could be found that the claimant worked at the home as a domestic worker, she did not work there 40 hours per week, as required to be covered under the Workers' Compensation Law. The WCLJ's decision was filed on April 19, 2011, and the claimant filed an application for administrative review.

LEGAL ANALYSIS

"The existence of an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its finding must be upheld if it is supported by substantial evidence" (Matter of Blotko v Solomon Oliver Mech. Contr., 91 AD3d 990 [2012] [internal quotation marks and citations omitted]). "Furthermore, any conflict in the testimony presented creates a credibility issue for the Board to resolve" (Matter of Brzezinski v Gambino, 100 AD3d 1192 [2012] [additional citations omitted]).

In Brzezinski, the claimant had alleged that she was injured while working for the homeowner as a live-in housekeeper. However, the homeowner testified that at the time the claimant was injured, the claimant was just still in the interview process after she had been referred by an employment agency. The homeowner explained that at the time of the accident, she could not yet determine whether she was going to hire the claimant because one of the claimant's duties would have been to drive the homeowner's children, and the claimant had not yet produced a copy of her driver's license to show that she was a qualified and capable driver. The Appellate Division affirmed the Board's finding of no employer-employee relationship, since the Board made a credibility determination that was based on sufficient evidence in the record.

Here, the owner of the agency testified that she referred the claimant to the homeowner, and that the claimant was to return to the witness and pay an application fee. However, the owner of the agency also testified that the claimant never returned to the agency to complete her application and pay her fee to the agency, and she did not make any financial arrangements for payment of the fee. The owner of the agency further testified that she did not place the claimant at the homeowner's house to work but rather, she just gave her an address for an interview.

Although the Board is entitled to make its own factual findings and is not bound by the credibility determinations of a WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 [2003]), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 [1991]). Here, the WCLJ was present when the witnesses testified and was able to observe their demeanor. The Full Board finds that testimony of the homeowner, which was credited by the WCLJ, is not inherently incredible, nor is the credibility determination of the WCLJ obviously flawed, or strongly contradicted by other evidence in the record. The Full Board further notes that the record contains no documentary evidence to show that the claimant had entered into an employment relationship.

Therefore, the Full Board finds that the claimant was not employee and was not injured in the course of her employment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed April 19, 2011, is AFFIRMED. The claim is disallowed. The case is closed.