The Full Board, at its meeting on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on January 17, 2013.
The issue presented for Mandatory Full Board Review is whether the case should be re-opened for further development of the record on the issues of employer-employee relationship and accident arising out of and in the course of employment.
The Workers' Compensation Law Judge (WCLJ) found that the claimant was employed by the employer on the date of the accident and established the claim.
The Board Panel majority rescinded the establishment of the claim and restored the matter to the trial calendar for further development of the record on the issues of employer-employee relationship and accident arising out of and in the course of employment. The Board Panel majority specifically directed that the motor vehicle accident report be submitted into the record and that the alleged employer produce its tax return for 2011.
The dissenting Board Panel member found that the WCLJ properly assessed credibility in favor of the claimant based upon the available evidence in the record at the time that the decision was rendered. The dissenting Board Panel member further found an insufficient basis to warrant a rescission of the WCLJ's decision and a reopening of the case to secure further development of the record via the production of documentary evidence that could have been produced prior to the closing of the record.
On February 14, 2013, the claimant filed an application for Mandatory Full Board Review, arguing that there is no reason for further development of the record and that the WCLJ's decision was appropriately based on the evidence in the record at the time.
On March 11, 2013, the Uninsured Employers' Fund (UEF) filed a rebuttal, arguing that the Board Panel majority's opinion should be affirmed because the claimant failed to submit sufficient credible evidence that he had been employed by the alleged employer at the time of the accident.
On March 13, 2013, the alleged employer filed a rebuttal, arguing that further development of the record is necessary to afford a just and fair hearing for all of the parties.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This is a controverted claim for injuries to the claimant's right knee, left hip, back and arm, resulting from an alleged work-related accident which occurred on June 4, 2011.
At the beginning of the hearing on February 16, 2012, the WCLJ advised the alleged employer that he really should be represented by legal counsel, and the alleged employer informed the WCLJ that he could not afford an attorney.
During the hearing on February 16, 2012, the claimant testified that he began working for the alleged employer in late March of 2011, and had been employed by the alleged employer for approximately three months when the accident occurred. According to the claimant, when he first began working for the alleged employer the nursery was closed and he was helping set up for the season. The claimant stated that his duties included: cleaning up around the nursery; unloading trucks; setting up the merchandise in the nursery; keeping the plants watered; cleaning up shrubberies around the nursery; and running the cash register from time to time. According to the claimant, the alleged employer had no other employees at the time, but that every once in a while the alleged employer's grandson would assist at the nursery. The claimant testified that he worked continuously for the alleged employer from late March through June 4, 2011; that he worked approximately forty hours per week for the alleged employer; that he worked six days per week; that he was paid $12.00 per hour; that in addition to his hourly pay he received tips from customers, approximately $5.00 per hour; and that he was paid his hourly wage in cash at the end of each work day which was equal to approximately one hundred dollars per day. The claimant further testified that on June 4, 2011, he was attempting to enter the company truck to re-park it when the truck "jumped out of gear" (Hearing Minutes 2/16/2012, pg. 14). According to the claimant he attempted to stop the truck and the truck "drug me across the front part of the nursery, out into the highway, across the street, then it came across my back and hit me" (id.).
During the alleged employer's attempt at cross-examination of the claimant, the WCLJ interjected and stated "That's why you need a lawyer sir. You really need a lawyer." (id. at 18).
During cross-examination by the representative for the UEF, the claimant testified that he is a carpenter and, at times, an auto mechanic, but that he was working at the nursery because "I needed to make some money" (id. at 20). The claimant testified that he worked six days per week every week and that he never took any days off. The claimant acknowledged that no tax withholdings were taken out of his pay and that he did not file a tax return for 2011.
During the hearing on February 16, 2012, the owner of the alleged employer-company testified that the alleged employer is a corporation and that he is the president, sole owner and sole stockholder of the company. According to the witness, the claimant was never employed by the company. The witness testified that the claimant basically just "hung around" the nursery (id. at 26). The witness further testified that every now and then he would see the claimant with a broom in his hand sweeping the driveway, but that he did not pay the claimant to do so. The witness stated that sometimes the claimant would ride around with him in his truck, but that it was for leisure, not business. The witness acknowledged that he would buy the claimant lunch from time to time. The witness testified that he runs and operates the nursery by himself, but that his son will help out from time to time; that he does not pay his son for his help; that he does not have any employees; that the nursery does not take much work to run; that he operates the cash register; and that he no longer has many customers as the business has declined over the past few years. The witness stated that even when the business was busier he did not have any employees, but that family would help out. The witness testified that he allowed the claimant to borrow his truck from time to time, but that the claimant was driving his truck without permission on June 4, 2011. According to the witness after the accident on June 4, 2011, the claimant stated "I'm sorry Don. I'm sorry Don...I was backing up the truck, and I hit the jeep...when I went to put it in park, it was too close to the jeep...so I got out of the truck and started running away" (id. at 35).
On cross-examination by the representative for UEF, the alleged employer testified that he usually opens the nursery just before Memorial Day and that he usually closes the nursery after Halloween. The witness testified that the store hours vary and that on some days the nursery might be open for two hours, while on other days it might be open for five hours. According to the witness, "Sometimes I'll open up maybe after 12 o'clock just to see if there is any business, and there is nothing. I say, oh, there is no sense hanging around here" (id. at 39). The witness stated that his son helps from time to time, and that his grandson may come in and help once in a while on the weekend. The witness testified that he has never paid anyone to work for him.
During the hearing on February 16, 2012, the employer's son testified that the relationship between the claimant and his father was "more or less out of the kindness of my father's heart. He's a generous person, and he's very outgoing and giving..." (id. at 42). The witness testified that he believed that his father had loaned the claimant money on different occasions. According to the witness he helps out at the nursery sometimes, but that he is not employed by the nursery. The witness stated, "in regard to the nursery, there is not much business" (id. at 43). The witness indicated that very rarely do customers come to the nursery to buy plants and that his father very rarely receives deliveries of plants at the nursery. The witness testified that when deliveries are made the driver of the truck usually unloads the plants and that he will assist at times. According to the witness, his father never employed any employees at the nursery.
On cross-examination by the representative for the UEF, the witness testified that he has never been paid for his services at the nursery, and that as far as he knows his son has never been paid for helping out around the nursery. The witness testified that he never saw the claimant doing any kind of labor at the nursery, and stated that he has witnessed the claimant working at a gas station on numerous occasions since June 4, 2011.
At the conclusion of the hearing on February 16, 2012, the WCLJ told the alleged employer "you did need a lawyer, and you do need a lawyer" (id. at 59).
In a reserved decision filed on February 22, 2012, the WCLJ found that the claimant was employed by Green Thumb Seasonal Nursery Inc. and its president, Donald Caetano, on the date of the accident and established the claim for injuries to claimant's right knee, left hip and back.
It is well settled that the issue of the existence of an employer-employee relationship is a factual one to be resolved by the Board based upon substantial evidence in the record (Matter of Banful v Skyline Credit Ride Inc., 222 AD2d 871 ). The factors to be considered in making the determination include the right to control the work, the method of payment, the identity of the party furnishing the necessary equipment, the right to discharge and the nature of the underlying work (Matter of Winglovitz v Agway Inc., 246 AD2d 684 ). No single factor is deemed dispositive and the decision may be based on any one or a combination of the relevant factors (Matter of Gregg v Randazzo, 216 AD2d 747 ). In resolving the question it is within the province of the Board to evaluate the credibility of witnesses and draw any reasonable inferences from the evidence presented (Matter of Topper v Al Cohen's Bakery, 295 AD2d 872 ).
To be compensable under the Workers' Compensation Law, an accident must both arise out of and in the course of employment (Matter of Rosen v First Manhattan Bank, 202 AD2d 864 , affd 84 NY2d 856 ). Furthermore, pursuant to Workers' Compensation Law § 21, "accidents arising 'in the course of' one's employment are presumed to have arisen 'out of' such employment, and such a presumption can only be rebutted by substantial evidence to the contrary" (Matter of Van Horn v Red Hook Central School, 75 AD2d 699 ). This presumption applies to accidents that are unwitnessed as well as to accidents that are unexplained (Workers' Compensation Law § 21(1) see Matter of Koenig v State Insurance Fund, 4 AD3d 671 ).
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 ), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 ).
In the present case, the record was developed through testimony offered by the parties, cross-examination of witnesses and the production of documentary evidence. Although some pieces of relevant documentary evidence may not have been produced, the record was sufficiently developed on the issues of employer-employee relationship and accident to allow the presiding law judge to render a reasoned decision on the issues. The WCLJ assessed credibility in favor of the claimant based on the evidence in the record at the time that the decision was rendered and determined that the evidence in the record supported a finding that an employer-employee relationship existed between the alleged employer and the claimant, and that the claimant suffered an accident arising in and out of the course of employment.
During the proceedings leading up to the filing of the WCLJ's decision on February 22, 2012, the alleged employer appeared as a pro se litigant; however, the alleged employer was advised on multiple occasions to retain counsel. The fact that the alleged employer decided not to retain counsel until after a decision was rendered which left him aggrieved is not a sufficient basis to warrant a rescission of that decision, and a reopening of the case to secure further development of the record for the production of documentary evidence which could have been presented to the Board prior to the filing of the decision.
Accordingly, the Full Board finds that the claimant was employed by Green Thumb Seasonal Nursery Inc. and its president, Donald Caetano, on the date of the accident and that he sustained accidental injuries to his right knee, left hip and back, which arose out of and in the course of his employment. The Full Board further finds that the uninsured employer was afforded a full and fair opportunity to present evidence and defend this claim, and that further development of the record on the issues of whether claimant was an employee or sustained an accidental injury arising out of and in the course of his employment is not warranted.
ACCORDINGLY, the WCLJ decision filed on February 22, 2012, is AFFIRMED. No further action is planned by the Board at this time.