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Case # G1445311
Date of Accident: 08/20/2015
District Office: NYC
Employer: New York Black Car Operators
Carrier: New York Black Car Operators
Carrier ID No.: W549976
Carrier Case No.: 15000410
Date of Filing of Decision: 02/27/2017
Claimant's Attorney: Polsky Shouldice & Rosen PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on January 24, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 18, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant was engaged in a covered service pursuant to New York Executive Law § 160-cc(4) at the time of the accident.

The Workers' Compensation Law Judge (WCLJ) found the claimant was engaged in a covered service and established the claim for injuries to both of the claimant's knees, the left shoulder and the back.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member would have disallowed the claim and found the claimant was not engaged in a covered service at the time of the accident.

The New York Black Car Operators Injury Compensation Fund Inc. (Black Car Fund) filed an application for Mandatory Full Board Review on September 14, 2016. The Black Car Fund maintains that the Board Panel majority departed from its established precedent in Matter of Black Car Fund (2015 NY Wrk Comp G1140640), which it contends is almost factually identical to this matter.

The claimant filed a rebuttal on October 13, 2016.

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

FACTS

In a C-3 (Employee Claim) filed on September 15, 2015, the claimant alleged that he was working as an Uber driver on August 20, 2015, when he was involved in a motor vehicle accident and injured both knees, his left shoulder and his back. The Black Car Fund controverted the case, arguing the claim was not compensable because the accident did not arise out of and in the course of employment as the claimant was not working at the time of the accident.

The record contains an MVA-104 (Police Accident Report) which indicates that claimant's accident occurred at 2:40 a.m. on August 20, 2015, on Atlantic Avenue in Queens, New York.

At a hearing held on January 28, 2016, the claimant testified that he was involved in a motor vehicle accident on August 20, 2015, in Queens, New York. He dropped off a fare between 12:00 a.m. and 1:00 a.m., in midtown Manhattan, and traveled to 34th Street to pick up another fare, but the fare was cancelled. He then drove towards his house hoping to pick up another fare on the way home. He was involved in an accident at approximately 1:50 a.m., at the intersection of Atlantic Avenue and 80th Street in Queens and about ten minutes later, an ambulance arrived. The ambulance personnel called the police, who arrived about 25 to 30 minutes later. The claimant also testified that he emailed Uber when he returned home from the hospital after the accident.

The WCLJ noted the claimant found an email on his phone which he sent to Uber at 6:13 a.m. on August 20, 2015, which stated, "I had an accident on my way home after work. My car is damaged. I won't be able to work until the insurance company fixes it." The WCLJ indicated that Uber responded to the claimant's email, and also indicated there was no physical copy of the email.

A paralegal employed by Uber testified that the claimant picked up a fare at 11:59 p.m. on August 19, 2015, and another fare requested at 1:34 a.m. on August 20, 2015. The witness testified about an "online log," which was submitted into the case file, and the witness confirmed the claimant was online for Uber between 1:00 a.m. and 1:50 a.m. on August 20, 2015.

A claims adjuster for the Black Car Fund testified that the claimant lived less than one mile from where the accident occurred.

At the conclusion of the hearing, the WCLJ established the claim for both knees, the left shoulder and the back, because all of the witnesses and the documentation confirmed that the claimant was logged into the Uber system until 1:50 a.m. on August 20, 2015, when the accident occurred.

The Black Car Fund filed an application for administrative review, and argued that the claimant was not engaged in a covered service pursuant to New York Executive Law § 160-cc(4) at the time of the accident, because the claimant was logged out of the online system, and not seeking another fare, but driving home.

In rebuttal, the claimant argued the claim was compensable because he was logged into Uber's system when the accident occurred at 1:50 a.m. on August 20, 2015, the ambulance arrived ten minutes after that, the police arrived 25-30 minutes after the ambulance, and the police report confirmed the time of accident of 2:40 a.m.

LEGAL ANALYSIS

A claimant who is subject to the New York 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]).

Here, the claimant is an Uber driver and is subject to the New York Black Car Operators Injury Compensation Fund. The claimant was engaged in a covered service at the time of the accident as provided in New York Executive Law § 160-cc(4), even though the accident occurred close to his home because the testimony and documentation show the claimant was logged into the Uber system and available to accept fares.

The Black Car Fund argues that the police report, which indicates that the accident occurred at 2:40 a.m., rather than at 1:50 a.m. as testified to by the claimant, warrants a finding that claimant was no longer logged on to the Uber system when the accident occurred. However, this discrepancy simply created an issue of fact for the Board to resolve. The WCLJ who heard claimant's testimony found him to have credibly testified that the accident occurred at 1:50 a.m. 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 who was present when the witnesses testified and was able to observe their demeanor, found the claimant to be credible.

Matter of Black Car Fund (2015 NY Wrk Comp G1140640) is distinguishable from the present case because in that case the driver was injured in a car accident that occurred on Long Island, but the driver was logged into the online system for a zone in Queens. The driver testified he was online and available to accept assignments, but he had been driving to his home in Long Island, in the opposite direction from Queens. Here, the claimant credibly testified that he was logged into the system, available to pick up fares, but driving towards his house at the time of the accident.

Therefore, the Full Board finds the preponderance of the evidence in the record supports the finding the claimant was engaged in a covered service pursuant to New York Executive Law § 160-cc(4) at the time of the accident, and therefore the claim is compensable.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on February 2, 2016, is AFFIRMED. No further action is planned by the Board at this time.