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Workers' Compensation Board

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Case # G1103596
Date of Accident: 05/02/2014
District Office: NYC
Employer: Jose Bosa
Carrier: *** Carrier Undetermined ***
Carrier ID No.: W000004
Carrier Case No.:
Date of Filing of Decision: 02/07/2018
Claimant's Attorney: Ugalde & Rzonca, LLP
Panel: Clarissa M. Rodriguez


The Full Board, at its meeting on December 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed February 1, 2017.


The issue presented for Mandatory Full Board Review is whether there is sufficient evidence in the record that the claimant was an employee of Jose Bosa at the time of his May 2, 2014, accident.

The Workers' Compensation Law Judge (WCLJ) found that the claimant was an employee of Jose Bosa, established the claim for the neck, back, left shoulder and post-concussive syndrome, and assessed a Workers' Compensation Law (WCL) 26 penalty upon Jose Bosa for violating WCL 50.

The Board Panel majority reversed the WCLJ decision in its entirety and disallowed the claim on the ground that the claimant was not an employee of Jose Bosa.

The dissenting Board Panel member would have affirmed the WCLJ.

The claimant filed an application for Mandatory Full Board Review on March 1, 2017, arguing that the dissenting opinion should be adopted by the Full Board because there is sufficient evidence of an employment relationship.

The alleged employer (hereinafter, the employer) filed a rebuttal on March 24, 2017, arguing that the majority's opinion must be affirmed by the Full Board because the credible evidence supports the Board Panel's finding of no employer/employee relationship.

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


This is a controverted claim for injuries sustained on May 2, 2014. In a C-3 dated May 12, 2014, the claimant alleges that on May 2, 2014, while removing debris, he tripped and fell injuring his neck, back, left wrist, left thumb, left arm, and left hand. The claimant listed his employer as Mina Truck Services and his supervisor as "Jose Bosso."

At the hearing on November 26, 2014, Mr. Mina-Miranda appeared. He advised the WCLJ that the claimant did not work for him, he worked for Jose Bosa (see Hearing Transcript, 11/26/14, p. 4). The claimant advised the WCLJ that he did not know Mr. Mina-Miranda and affirmed that he worked for Mr. Bosa at his company Mina Truck (see id. at p. 5). Mr. Mina-Miranda was therefore dismissed, and Mr. Bosa was called to testify (see id.). The claimant identified Mr. Bosa as his employer at his company Mina Truck (see id. at p. 6). Mr. Bosa denied that the claimant worked for him on the date of the accident (see id. at p. 7). He testified that he and the claimant were friends, and the claimant had worked for him "three days prior to the accident" (id. at pp. 6-7). He stated that the claimant was working for the grandson of Mr. Mina on the date of accident (see id. at pp. 7-8). The WCLJ placed on notice Miranda Truck Services and Relocation Truck Services (see id. at p. 10).

At the hearing held on May 28, 2015, the claimant appeared and testified that he was employed by Mr. Bosa on May 2, 2014 (see Hearing Transcript, 5/28/15, p. 3). On that day, he was moving debris from a demolition project at a home in Manhattan (see id.). The claimant had worked for him three years prior and started again in December 2013 (see id. at p. 3-4). He alleged he was paid $150.00 a day, 5 days a week (on average) (see id. at p. 5). He was injured when he got tangled up on a wood pile (see id.). He hit his arm against the wood, perforating his veins and injuring his neck, back, and left wrist (see id. at pp. 5, 7). He was taken to the hospital by Mr. Bosa's driver (see id. at p. 6). Mr. Bosa was not present when the accident happened, but he was notified of the accident by the driver (see id.). He has not worked since the date of accident (see id. at p. 8).

In a reserved decision filed on June 8, 2015, the WCLJ found the claimant was an employee of Mr. Bosa and established the claim for injuries to the neck, back, left wrist, and right shoulder and post-concussion syndrome. The employer sought administrative review, and in a decision filed on March 16, 2016, a Board Panel found that further development of the record was warranted on the issue of employer-employee relationship. Accordingly, the WCLJ decision filed on June 8, 2015, was rescinded and the case was restored for further development of the record.

At the hearing on May 26, 2016, Mr. Bosa appeared and testified that the claimant is a friend of his and they work "together" (Hearing Transcript, 5/26/16, p. 7). Mr. Bosa explained that the claimant "worked with [him] probably on [10] occasions" over the past six or seven years (id. at p. 8). When they worked together, they would work for different people who called them through their business cards (see id.). Mr. Bosa further testified that he owns a box truck, which he uses for work purposes (see id.). He was contacted through the business card to do a job in Manhattan on May 2, 2014 (see id. at p. 9). As that was his day off, Mr. Bosa contacted Mr. V. to do the job. While talking to the claimant about a personal matter, the claimant asked if he had a job for the day (see id. at p. 10). Mr. Bosa advised him that a job just came in for work in Manhattan and Mr. V. was going to take care of it, so Mr. Bosa told the claimant he could go with Mr. V. and make a little bit of money (see id.). When they get a job, they use the money to first pay for the dumpster and divide the balance amongst themselves (see id. at p. 11). Mr. Bosa did not go to the job on May 2, 2014, and no one was paid because the job was not finished (see id. at p. 12). Regarding his truck, Mr. Bosa explained that, although he owns the truck, it is used for the benefit of them all, including the claimant, and on the accident date, Mr. V. had driven the truck (see id. at p. 13). Regarding the business cards, Mr. Bosa explained that the cards have four phone numbers listed on them: two of his numbers, the claimant's number, and a third person's number (see id. at p. 14). Persons interested in hiring them can call any of the numbers, including the claimant's, to inform them of a job (see id.). They are typically paid in cash, but sometimes check (see id. at p. 18). If they are paid by check, Mr. Bosa will cash the check and then divide the earnings among those who worked on the project (see id.).

The electronic case folder contains copies of two business cards. The first, filed with the Board on December 3, 2014, advertises "Mina Truck Services" and lists two telephone numbers, at least one of which matches the number for Mr. Bosa on file with the Board. The second card, filed with the Board on July 7, 2016, advertises "Demolition Construction" and "Moving" services, both in Spanish and English, and lists two phone numbers, one of which belongs to the claimant.

At the hearing held on July 7, 2016, the witness, Mr. V., appeared and testified that he is familiar with Mr. Bosa as they are relatives (see Hearing Transcript, 7/7/16, p. 3). The witness was working on the date of accident taking garbage outside of a building and putting it inside of a truck (see id. at p. 4). He had contacted Mr. Bosa to find out if he had any work, and then he and the claimant went to do the job together (see id.). The claimant injured his arm while they were working, so he took the claimant to the hospital (see id. at pp. 5-6). To get paid, they would have to finish the job, and then he or Mr. Bosa would collect the money from the client (see id. at p. 7). When asked whether the claimant worked for Mr. Bosa, Mr. V. replied: "Not really. I mean we all just ask for days and . . . anybody that's willing to go there go [sic]" (id. at p. 9). Mr. V. stated that the claimant has his own business cards, but he was unsure whether he owned a company (see id. at p. 10). Regarding payment, Mr. V. explained that they charge the customers depending on the weight of the truck, and whomever has been dealing with the customer will be the one to charge them (see id. at p. 11). When they are paid by check, the check will be made out to whichever worker is present and has ID (see id. at p. 12). Sometimes Mr. Bosa would get paid more, but that money would go toward paying for his trucks, since they needed them to perform their work (see id. at p. 13).

The claimant also testified at the July 7 hearing. He denied having a company and has never allowed his cell phone number to go on a business card (see id. at p. 14). He confirmed his cell phone number and stated that he did not know why that number was on the business card in evidence (see id. at p. 15). He denied ever getting phone calls for work through a business card (see id. at p. 19). The claimant would work when and if there was work available (see id. at p. 20). He alleged that he worked every day of the week before the accident and was paid $150.00 per day for this work (see id. at pp. 21-22).

At the end of the testimony, the alleged employer, Mr. Bosa, advised the WCLJ that the claimant contacted him on May 2, 2014, to find out if there was any work; he did not contact the claimant (see id. at p. 23). The claimant was always calling looking for work, and in the week prior to the accident, he only worked three days (see id. at p. 24). Prior to that it had been many years since they had worked together (see id. at p. 25).

Following testimony, the WCLJ found that the claimant was an employee of Mr. Bosa. The WCLJ further found that the employer violated WCL 50 and noted that penalties would be assessed under WCL 26-a. The case was established for accident, notice and causal relationship for the neck, back, left shoulder, and post concussive syndrome. The average weekly wage was set at $650.00 without prejudice and awards were directed. The findings and awards made at the July 7, 2016, hearing are reflected in a decision filed July 12, 2016.

The employer and the Uninsured Employers Fund (UEFJ) each sought administrative review. The UEF requested that the decision be rescinded and the claimant be found to be involved in a joint venture and not an employee. The UEF argued that the claimant's testimony was not credible and the business card documentation supports their position, as the claimant confirmed his phone number was listed on the business card. The UEF further argued that the claim lacks evidence of the requisite direction and control of an employment relationship.

The employer likewise requested that the decision be rescinded and the claimant be found to be a co-worker. The employer argued that there was no proof that the claimant worked for him; rather, the evidence showed that they split the money and the claimant's phone number was on their business card.

In rebuttal, the claimant maintained that the decision should be affirmed because Mr. Bosa was responsible for acquiring and managing the terms of the work, including the rate of pay.


Pursuant to the New York State Construction Industry Fair Play Act (Labor Law Article 25-B, incorporated by WCL 2[4]), there is a presumption of employment in the construction industry. The Fair Play 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).

The term "contractor" is broadly defined in the Fair Play Act to include "any sole proprietor, partnership, firm, corporation, limited liability company, association or other legal entity permitted to do business within the state who engages in construction work" (Labor Law 861-b[2]-[3]). Construction is defined as constructing, reconstructing, altering, maintaining, moving, rehabilitating, repairing, renovating or demolition of any building, structure, or improvement, or relating to the excavation of or other development or improvement to land (Labor Law 861-b[1]). The Fair Play Act requires that a claimant be employed by a "contractor" to come within the protection of the Act.

Here, the claimant testified that he was removing debris from a construction site following a demolition (see Hearing Transcript, 5/28/15, p. 3). It appears from his testimony that neither he nor the alleged employer participated in the preceding demolition. However, one of the business cards on which the claimant's name appears lists "Demolition" and "Construction" as available services. It is unclear whether Jose Bosa's work was purely debris removal, or also included demolition work. Moreover, the parties have not been given a chance to assert arguments regarding whether the Fair Play Act applies. Therefore, the matter is remanded to the trial calendar for further development of the record as to whether the Fair Play Act is applicable, and specifically whether the alleged employer was a "contractor" who was engaged in "demolition" within the meaning of the act.


ACCORDINGLY, the WCLJ decision filed July 12, 2016, is RESCINDED without prejudice. The case is remitted to the trial calendar for further development of the record as indicated above.