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Workers' Compensation Board

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Case # G1078904
Date of Accident: 02/15/2015
District Office: Hauppauge
Employer: Town of Brookhaven
Carrier: Brookhaven, Town of
Carrier ID No.: W805501
Carrier Case No.: 0018W67252
Date of Filing of Decision: 02/27/2017
Claimant's Attorney: Miller & Caggiano LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on January 24, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on September 19, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is employer/employee relationship.

The Workers' Compensation Law Judge (WCLJ) found that the claimant was an employee and established the claim.

The Board Panel majority affirmed the WCLJ's decision, finding that the claimant was an employee of the self-insured employer (SIE), and established the claim. In support of its decision, the majority cited Matter of Brown v City of Rome, 66 AD3d 1092 (2009).

The dissenting Board Panel member would find that the claimant was an independent contractor.

In its application for Mandatory Full Board Review filed October 12, 2016, the SIE argues that the claimant is an independent contractor and that the Board Panel majority's reliance on Matter of Brown is misplaced. The SIE further argues that the majority failed to consider the prior Board Panel decision in Matter of A. Aluminum Specialties (2000 NY Wrk Comp 2950 5366).

The claimant argued in his rebuttal filed November 10, 2016, that the majority opinion should be adopted because the SIE exercised significant control over the claimant.

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

FACTS

This is a controverted claim for injuries that occurred during a motor vehicle accident on February 15, 2015, while the claimant was plowing roads for the SIE, which is a local governmental entity. The sole issue is whether the claimant was working as an uninsured independent contractor or an employee of the SIE.

The claimant testified that on February 15, 2015, he was plowing the SIE's roads in the plow truck he owned when he was involved in a motor vehicle accident. This was the second snow season that he worked for the SIE. He was given a 1099, and paid an hourly wage, which was paid by check once a month. During the winter the claimant is on call for the SIE, who tells him when to plow, where to plow, how long to plow, and when to spread sand and salt. The SIE provides the sand and salt mixture. The SIE would send a foreman to his assigned work area to supervise the work he performed and to provide instructions. He is not allowed to take private plowing jobs while he is performing work for the SIE. His regular employment was selling used cars for the business he owns.

On cross-examination, the claimant confirmed that he owned the truck and spreader and maintained insurance for the vehicle. The claimant provided the SIE with a certificate of insurance, a copy of the truck's registration and his driver's license. When he plowed for the SIE he placed a tag the SIE gave him on his door, and his supervisor drove a truck with the SIE's logo on the side. The claimant's truck was inspected by the town before he was placed on the SIE's call list. He is not a member of the union that represents the SIE's full time employees, nor was he provided any other health or pension benefits. He was called by the SIE when it needed him, and he was called for every snow storm. He could turn down a call from the SIE if he wanted to, but he never did.

The SIE had a senior accountant testify regarding the relationship between the claimant and the SIE. The accountant testified that the SIE hires additional people with their own plow trucks to plow in the winter. These part time snow removal workers must submit a certificate of insurance, driver's license and registration. After a part time snow removal worker's truck is inspected by the SIE's mechanic, he or she is given a tag by the SIE to plow the town's roads. The claimant was paid by check based upon an hourly wage, which were issued once a month. The accountant testified that the SIE's employees wear safety vests and coats with the SIE's name on them, and they drive plow trucks owned by the SIE with its logo on the side. The accountant confirmed that the town's full time employees are members of a union and they are paid an hourly wage, as well as receiving health insurance and pension benefits.

On cross-examination, the accountant testified that the SIE hires part time snow removal workers because the town does not have enough full time employees for the work. The accountant confirmed that the SIE decides when the part time snow removal workers are called to plow roads. When these part time workers are called to work, they first go to the SIE's central yard and get their assignments, which they are not allowed to deviate from. The accountant admitted that the SIE's foreman tells the snow removal workers when they can use their spreaders, and he makes sure the work is up to the SIE's standards. The accountant confirmed that the part time snow removal workers are not allowed to plow private driveways and parking lots while performing work for the SIE. The SIE's foreman tells the part time workers when to stop plowing, and the part time workers must sign out at the SIE's central yard when they are finished working. The town never refused to pay anyone for poor work, but the foreman would not use them again. With regard to the payroll, the part time workers kept their own time sheets and submitted them with a claim voucher. The part time snow removal workers did not submit a bill to the SIE.

The SIE submitted several exhibits which confirmed that the claimant provided his certificates of insurance for the two winters he worked with the SIE, his registration, an affidavit of his ability to legally work in the United States, an anti-nepotism affidavit, an affidavit of truck ownership, a driver's license and a W-9. The affidavit of truck ownership is a preprinted form that the claimant completed by writing his name and truck information in the appropriate spaces before dating and signing it. This form affidavit's printed language mentions that the claimant is an independent contractor.

By a decision filed February 17, 2016, the WCLJ found an employer-employee relationship and established the case for causally related injuries to the back, bi-lateral shoulders and right elbow.

The SIE sought administrative review of the WCLJ's decision.

LEGAL ANALYSIS

"Whether an employer-employee relationship exists is a factual issue for the Board...The relevant factors in making 'such a finding include the right to control the work and set the work schedule, the method of payment, the furnishing of equipment, the right to discharge and the relative nature of the work at issue' (Matter of Bugaj v Great Am. Transp., Inc., 20 AD3d 612 [2005]). No one factor is dispositive, however, including the fact that the contract between claimant and the City designates claimant as an independent contractor" (Matter of Brown v City of Rome, 66 AD3d 1092 [2009] [additional citations omitted]).

In Matter of Brown, the claimant entered an agreement with the City of Rome to provide guidance to community organizations and implement urban renewal initiatives. The city contended that the claimant was an independent contractor, but the Court affirmed the Board's finding of employer-employee relationship, noting the following relevant factors: "The record reflects that claimant was supervised by City employees and that the City had authority to discharge him. He was required by those supervisors to work certain hours and attend City department meetings, he received directives from the City's mayor and other City officials, and he supervised City employees that were assigned to him. Claimant was paid by the City on a monthly basis, needed preapproval from the City for his expenses and used office equipment and supplies provided by it" (id.).

In this case, despite the SIE's efforts to characterize the claimant as an independent contractor, the record supports a finding that the SIE controlled the mode, manner and scope of the claimant's work such that he can only be considered a part time employee. When the claimant worked for the SIE he was required to go to its central yard to receive his assignment and he was not allowed to deviate from his assignment until released by the foreman, who supervised his work. The claimant was paid a wage based upon the number of hours he worked, and his truck was inspected by the SIE. Additionally, unlike an independent contractor, the claimant was not allowed to deviate from his work with the SIE to handle private plowing jobs until he was released by the SIE.

In Matter of A. Aluminum Specialties, cited by the SIE in its application for Mandatory Full Board Review, the Board Panel found an employer-employee relationship in a case in which the employer paid the claimant in cash for each location's sidewalk he cleared, the claimant paid for his own helper, had no taxes deducted, and provided all tools except for a plow truck. The Board Panel specifically found that the use of the claimant's own truck is not dispositive on the issue of employer-employee relationship. In A. Aluminum Specialties, the employer exercised less control over the claimant than was exercised by the SIE in the present case, so the employer's reliance upon it is wholly misplaced.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant was an employee of the SIE.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed February 17, 2016, is AFFIRMED. The case is continued and returned to the hearing calendar to address all outstanding issues.