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Case # G1525888
Date of Accident: 01/07/2016
District Office: NYC
Employer: Uber/Lyft Transport Co
Carrier: New York Black Car Operators’
Carrier ID No.: W549976
Carrier Case No.: 16000088
Date of Filing of Decision: 02/07/2018
Claimant's Attorney: Grey and Grey LLP
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

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 April 20, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant had an accident arising in and out of the course of employment.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim.

The Board Panel majority agreed with the result reached by the WCLJ and disallowed the claim on the ground that the claimant was not available to accept an assignment at the time of the accident and, therefore, was not engaged in a covered service within the meaning of Executive Law § 160-cc(4) when he was injured.

The dissenting Board Panel member would have found that the claimant was engaged in a covered service at the time of the accident and established the claim.

The claimant filed an application for Mandatory Full Board Review on May 19, 2017, asking the Full Board to adopt the opinion of the dissenting Board Panel member.

The carrier filed a rebuttal on June 15, 2017 arguing that the claimant's accident did not arise while he was performing a covered service pursuant to Executive Law § 160-cc(4) because he was not available to accept assignments at the time of the accident.

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

FACTS

This is a controverted claim wherein an Uber driver was injured in a motor vehicle accident.

On his C-3 (Employee Claim) form, the claimant stated that he was injured on January 7, 2016, between 10:50 and 11:00 a.m., when his car was struck by another vehicle on the Major Deegan Expressway.

The police report indicates that the accident occurred on January 7, 2016, at 11:20 a.m., and the claimant was transported to Lincoln Hospital for treatment (see MV-104).

The trip log produced by the carrier shows that the claimant accepted two trips on January 7, 2016: one at 6:08 a.m. and a second at 8:22 a.m. (see CORR [4-6-16], ECF Doc ID #262494845). Additionally, the activity log produced by the carrier indicates that the claimant logged off the Uber application (Uber App) at 11:10 a.m. on the morning of January 7, 2016, and did not go back online that day (see CORR [8-3-16], ECF Doc ID #269122008).

In a hearing held on August 2, 2016, the claimant testified that the accident occurred on the Major Deegan Expressway, Exit 10, while traveling southbound (see Hearing Transcript, 8/2/16, p. 3). At the time of the accident, he was travelling from Westchester to Manhattan, after dropping off an Uber passenger in Westchester County (see id.). He had the Uber App on and was headed to Manhattan to accept another call, but he had not yet received an assignment (see id. at p. 5). However, he expected to receive a call through the Uber App (see id.). The claimant testified that he started picking up passengers that day around 8:15 or 8:20 a.m. (see id. at pp. 5-6). After the accident, he was taken to the hospital by ambulance, and he sent a text message to Uber Partners that same day to advise them that he had been involved in an accident (see id. at pp. 7-8).

On cross-examination, the claimant testified that the accident occurred around 10:55 a.m., and the police arrived at the scene approximately 15 to 20 minutes thereafter (see id. at p. 10). After carrier's counsel noted that the police report indicated the accident occurred at 11:20 a.m., the claimant testified that the accident happened between 11:00 and 11:30 a.m. (see id.). The claimant did not know how many calls he had completed that day, because "he did all through the 9th (sic) and was to complete the morning to 11:00 after rush hour" (id. at p. 11). The claimant testified further that his first call on the morning of January 7, 2016, was around 6:00 a.m. and his second call at 8:22 a.m. is the one that brought him into Westchester (see id.). The claimant reiterated that his Uber App was on during his ride from Westchester to Manhattan (see id.). When asked why the activity log showed that the Uber App was off during the early morning, after the claimant completed his trips, the claimant explained that the app switches on and off, and drivers must click it on again (see id. at p. 12). He did not receive any calls while he was coming back to Manhattan, and was about two miles from home when the accident occurred (see id. at p. 15). Regarding his usual work hours, the claimant testified that he usually begins work around 9:30 p.m. and works for 8 to 10 hours (see id. at p. 16). However, his hours vary greatly and sometimes he works extra hours (rush hours) before he closes (see id.).

The claims adjuster from the Black Car Fund next testified on behalf of the carrier. The claims adjuster stated that the claimant logged off the app at 11:10 a.m. on the day of the accident (see id. at p. 20). The claimant had completed two trips that morning, one at 6:08 a.m. and one at 8:22 a.m. (see id. at p. 22). He did not pick up any other passengers that morning (see id.). The activity report demonstrating the time the claimant was logged into the Uber App showed that the claimant was logged on (online) and off (offline) throughout the morning of January 7, 2016. The witness surmised that the claimant may have been logging in and out to check to see if there were any calls in his area or perhaps he was just going into the App, but she could not be sure why the claimant was logging on and off (see id.). The witness agreed that the claimant was on and off the Uber App after his last dispatch at 8:22 a.m. (see id. at p. 31).

In a Notice of Decision filed on August 5, 2016, the WCLJ disallowed the claim. The claimant sought administrative review, contending that he credibly testified to being available to accept a fare while he was on his way back to Manhattan after dropping off a passenger in Westchester. The carrier did not timely file a rebuttal.

LEGAL ANALYSIS

Generally, for an accidental injury to be compensable under the Workers' Compensation Law (WCL), it must arise out of and in the course of employment (Matter of Rosen v First Manhattan Bank, 202 AD2d 864 [1994], affd 84 NY2d 856 [1994]). A claimant who is subject to the New York State Black Car Operators Injury Compensation Fund is eligible for compensation benefits only if he or she is injured while engaged in a "covered service." Executive Law § 160-cc(4) provides, in relevant part, that "'[c]overed services' means, with respect to dispatches from or by a central dispatch facility located in the state, all dispatches from such central dispatch facility regardless of where the pick-up or discharge occurs..." An actual work assignment is not necessary to have a dispatch. If a claimant is "on duty and available to accept assignments" he or she is engaged in a covered service within the meaning of Executive Law § 160-cc(4) (Matter of Aminov v New York Black Car Operators Injury Compensation Fund, 2 AD3d 1007 [2003], lv dismissed 4 NY3d 739 [2004], lv denied 4 NY3d 709 [2005]).

In this case, a preponderance of the evidence indicates that the claimant was not engaged in covered services within the meaning of the Executive Law at the time the accident occurred. The documentary evidence, in the form of the employer's activity log, indicates that the claimant was offline (i.e. not logged into the Uber App) at 11:10 a.m. on the date of the accident. According to the motor vehicle accident report, the claimant's accident took place at 11:20 a.m., 10 minutes after he logged out of the Uber App and was therefore unavailable to accept an assignment. Although the claimant testified that the accident occurred earlier, when he was still logged into the Uber App and able to accept an assignment, his testimony is inconsistent and therefore lacks credibility, as found by the WCLJ who witnessed his testimony. Originally, the claimant stated in his C-3 form that the accident took place between 10:50 a.m. and 11:00 a.m. Likewise, in his initial testimony, the claimant stated that the accident occurred around 10:55 a.m. However, when the carrier's counsel noted that the police report indicated that the accident happened at 11:20 a.m., the claimant then maintained that the accident took place later - between 11:00 a.m. and 11:30 a.m.

Further evidence supports the finding that the claimant was logged off the Uber App prior to the accident. The claimant testified that he normally began his workday around 9:30 p.m. and drove for 8 to 10 hours. He stated that he occasionally worked some extra hours in the morning during rush hour, and would end after rush hour at 11 a.m. (see Hearing Transcript, 8/2/16, pp. 11, 16). Thus, the circumstantial evidence in the record suggests that the claimant did not plan to accept additional passenger assignments after rush hour ended, around 11 a.m. Although the claimant's normal work schedule is not dispositive, his testimony, read in conjunction with the documentary evidence that the claimant was logged off at 11:10 a.m., supports a finding that the claimant was not on duty and available to accept assignments at the time of the accident, which occurred a short distance from his home.

Moreover, the claimant's explanation as to why the Uber App was intermittently turned on and off is not particularly credible. The claimant testified that the app switches on and off, and drivers must click it on again. However, the times between when the application changed from online to offline varies greatly - between seven minutes (online at 7:51 a.m., offline at 7:58 a.m.) to almost two hours (online at 8:08 a.m., offline at 9:55 a.m.) - suggesting that the offline status was not triggered by the application timing-out due to inactivity after a fixed period of time. And although the claimant's counsel suggested that the offline status may be due to connectivity issues with Wi-Fi or cell phone service (see id. at pp. 25-26), the claimant never himself maintained that poor connectivity or other technological issues were the cause for the application going offline. Rather, he asserted merely that the application switches on and off and must manually be turned on again.

Therefore, the preponderance of the evidence in the record supports a finding that the claimant was not engaged in a covered service within the meaning of the Executive Law at the time of the accident, insofar as the record evidence indicates that he was not logged onto the Uber App and thus able to accept an assignment at the time the accident occurred.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed August 5, 2016, is AFFIRMED. The claim is disallowed on the ground that the claimant was not available to accept an assignment at the time of the accident and, therefore, not engaged in a covered service when he was injured.