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Case # G1077290
Date of Accident: 07/17/2014
District Office: Hauppauge
Employer: Sofia’s Care Services Inc.
Carrier: *** Carrier Undetermined ***
Carrier ID No.: W000004
Carrier Case No.: G1077290
Date of Filing of Decision: 10/04/2017
Claimant's Attorney: McIntyre Donohue Accardi Salmonson & Riordan LLP
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed December 12, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether an employer-employee relationship existed between the claimant and Sofia's Care Services at the time of the claimant's injury on July 17, 2014; and
  2. whether the claimant's accident arose out of and in the course of her employment.

The Workers' Compensation Law Judge (WCLJ) found that the claimant was an employee of Sofia's Care Services and established the claim for injuries to the back, left shoulder, and left elbow.

The Board Panel majority affirmed the WCLJ's finding that an employer-employee relationship existed between the claimant and the uninsured employer on July 17, 2014, but found that claimant did not sustain an accidental injury in the course of her employment on that date and disallowed the claim.

The dissenting Board Panel member would affirm the WCLJ.

The claimant filed an application for Mandatory Full Board Review on December 29, 2016, arguing that because the Board Panel majority found that an employer-employee relationship existed, which was the sole issue raised on appeal, the majority should have affirmed the WCLJ decision establishing the claim.

The alleged uninsured employer, Sofia's Care Services, filed a rebuttal on January 17, 2017, arguing that claimant was not credible and the claim should remain disallowed.

The carrier for South Shore Home Health Care filed a rebuttal on January 27, 2017, asking that the Full Board affirm that portion of the WCLJ decision discharging South Shore and its carrier and removing them from notice.

The Uninsured Employers Fund filed an untimely rebuttal which will not be considered (see 12 NYCRR 300.13[c]).

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

FACTS

This is a controverted claim for injuries to the left arm, left shoulder, left hand, and back sustained on July 17, 2014.

In a C-3 (Employee Claim) filed November 13, 2014, the claimant alleged that on July 17, 2014, she slipped on water while walking upstairs. The claimant indicated that, at the time of the accident, she was working as a personal assistant for Sofia's Care Services.

In a Form C-49.2 (Enforcement Unit Report of Investigation) filed February 4, 2015, the Board's investigator indicated that a check of insurance coverage records revealed no workers' compensation insurance coverage for Sofia's Care Services. The investigator indicated that on January 14, 2015, he visited two addresses listed for Sofia's Care Services and left a business card at the house located at each location. He indicated that he received a call from the owner of Sofia's Care Services, who stated that her business provides housing for people needing home care and that the home health aides who work at her facility are employed by a company named South Shore Home Health Services (hereinafter, South Shore). The investigator indicated that he spoke with a representative from South Shore, who confirmed that the claimant was an employee, but that she did not start working there until after the date of accident.

On a FROI-04 (First Report of Injury Report Type [MTC] 04-Denial) filed March 6, 2015, South Shore controverted the claim based on no policy in effect on the date of accident, no employer-employee relationship, deviation from employment, and no compensable accident/accident not in the course of employment.

In a Form PH-16.2 (Pre-Hearing Conference Statement) filed March 16, 2015, South Shore raised the same defenses it raised in its FROI-04. South Shore also argued that the claimant failed to timely report the accident pursuant to Workers Compensation Law (WCL) § 18.

In a Form PH-16.2 filed April 15, 2015, the claimant identified her employer at the time of her accident as Sofia's Care Services.

In an independent medical report dated June 1, 2015, the consulting orthopedic surgeon for South Shore, Dr. Sheikh, noted the claimant reported sustaining her injuries while carrying a patient upstairs. Dr. Sheikh opined the claimant had no impairment or residual dysfunction relating to her back. He opined that, although the claimant had a mild temporary impairment relating to her left shoulder, the treatment necessary would be short-term anti-inflammatories, physical therapy, and injections.

At a hearing on July 1, 2015, the claimant testified that she worked for the owner of Sofia's Care Services on the day of her accident, July 17, 2014 (see Hearing Transcript, 7/1/15, pp. 2-3). She began working on June 28, 2014, as a personal assistant, which involved cooking, doing laundry, running errands and house cleaning for the patients (see id. at p. 3). She described Sofia's Care Services as a group home for adults in which ten patients lived at the time she worked there (see id.). During the time she worked there, the only other employee was the owner's brother (see id.). The claimant explained that she came to work at Sofia's Care Services because her sister knew the owner of the group home at 131 Avenue C (hereinafter, the owner) (see id. at p. 4). The claimant's sister informed her that the owner was very busy during the summer months and needed help, so the claimant agreed to travel from her home in Haiti to New York to work for Sofia's Care Services (see id. at pp. 4, 9). The claimant reported that she was initially hesitant to work for the owner, but she eventually agreed because the owner called her on a near daily basis (see id.). The owner picked her up from the airport on June 27, 2014, and drove her to the group home; she began working the following day, June 28, 2014 (see id.). She was paid $250.00 a week in cash by the owner, and the owner also allowed her to live at the group home rent-free as part of her compensation (see id. at pp. 5, 7, 35). On July 24, 2014, the claimant was put on the books with South Shore, at which time she was paid $551.04 a week (see id. at pp. 6-7). Once she was working directly for South Shore, the owner began charging her $400.00 per month to rent a room in the group home, which the claimant shared with a patient (see id. at p. 7).

Regarding the accident, the claimant testified that on July 17, 2014, she slipped and fell on wet stairs while walking upstairs. She explained that she had just finished feeding a patient downstairs and was walking upstairs, but the stairs were flooded, causing her to slip (see id. at p. 8). As she fell, the banister cut her left arm, and she injured her back, shoulder, and elbow when she fell a second time while trying to get up (see id.). She went to the emergency room at Stony Brook Hospital where she had 16 stitches in her left arm. She did not initially mention the other injuries because she did not feel the effects of those injuries until a few days after the accident (see id. at pp. 8-9). From the time of the accident until October 6, 2014 (her last date of employment), she performed heavy work which included sweeping, mopping, cooking, laundry, doing dishes, and cleaning the house and the yard (see id. at pp. 30-31).

On cross-examination, the claimant testified that she was paid in cash on a weekly basis, but did not have any receipts proving payment (see id. at p. 35). Rather, the claimant had only "pink receipts" showing someone else's name. The claimant explained that the owner listed the name of a friend, L.A., who was "on the books" at South Shore for the work that the claimant was actually performing; South Shore would then pay the friend wages, and the owner would have the friend withdraw $250 per week from her bank account, which was then paid to the claimant (see id. at pp. 35-37). The claimant further explained that the owner could not list her name because she was not yet "on the books" with South Shore, as she had not yet gotten the physical examination required for home health aides (see id. at p. 37). She saw Dr. Cimmino on four occasions to get a physical for the job at South Shore (see id. at pp. 16-17). Each visit lasted approximately one hour (see id. at p. 18). One visit followed the accident on July 17, 2014, but she was not examined at that time and was only there to pick up her physical examination report (see id. at p. 17). According to the claimant, the owner drove her to these medical appointments and also drove her on other errands, including grocery shopping at Walmart, to get a cell phone, to exchange Euros for U.S. dollars, and two trips to South Shore to process her application (see id. at pp. 20, 22-24).

The claimant continued her cross-examination testimony at a hearing on November 4, 2015. Regarding the accident, the claimant testified that on July 17, 2014, she was going upstairs to give a cookie to one of the patients when she slipped on wet stairs and fell (see Hearing Transcript, 11/4/15, pp. 2-4). There were four bedrooms, including her own, and a living room located upstairs (see id. at pp. 2-3). The claimant explained that she had finished feeding a patient dinner and he asked for something else to eat, so she went to the kitchen to retrieve a cookie from the refrigerator; on her way back upstairs to meet the patient in the living room, she slipped on the staircase (see id. at pp. 3-4). The owner would bring the food to the patients, but the owner had told the claimant that she was allowed to give the patients something for dessert, such as a cookie or raisins (see id. at p. 31).

The claimant further testified on cross-examination that she was fired on October 6, 2015, over a misunderstanding involving one of the patients and his laptop computer, which she thought he wanted to sell for $20.00 (see id. at p. 6). She had the computer in her personal closet and was holding it until the patient repaid her $20.00 (see id. at pp. 6-7, 9, 11). The claimant explained that she often gave this patient small amounts of money, between $3 and $10, because the owner had recommended she do so in order to continue working with the patient, but she was never repaid (see id. at pp. 6-7, 10). The owner called the police regarding the laptop incident; when the police arrived, they told the claimant she had to leave because she had abused a mentally ill patient (see id. at p. 10-12). The claimant packed her belongings and left on October 8, 2015 (see id. at p. 14). She acknowledged that approximately fourteen days after losing her job with South Shore, she filed the claim for workers' compensation benefits (see id. at p. 15). She testified that she did not go to a doctor before filing the claim because she did not know the area and did not drive (see id. at p. 16).

The claimant also testified during cross-examination that her accident on July 17, 2014, was witnessed by several patients (see id. at p. 25). One patient saw the claimant bleeding and called the owner to report the incident (see id. at p. 26). An ambulance took the claimant to the hospital and the owner picked her up (see id.). She never told anyone at South Shore that she was physically unable to perform her job (see id. at p. 28). The owner did not pay for her medical treatment following her accident, nor did she pay any wages after the accident (see id. at p. 30). She was supposed to work from 4:00 p.m. to 10:00 p.m., but in actuality worked approximately 42 hours per week (see id. at p. 20), usually beginning at 6:00 or 7:00 a.m. and ending around 10:00 or 11:00 p.m. (see id. at p. 31). When asked for proof of her hours prior to working for South Shore, such as paystubs or a check, the claimant explained that she did not have any documentation because she was paid in cash until she was on the books with South Shore (see id. at pp. 20-21).

At a hearing on November 18, 2015, the owner testified that she did not personally know the claimant, but agreed to let her live with her as a favor to the claimant's sister, who the owner knew through church (see Hearing Transcript, 11/18/15, p. 3). The owner stated that she purchased bedroom furniture, toiletries, and clothes for the claimant and provided her with a free place to stay in one of her group homes (see id. at pp. 5-6). The claimant never worked for her directly (see id. at pp. 6, 11). The owner explained that there was a patient who lived in her group home who had difficulty eating and therefore required a home health aide (see id. at p. 7). The patient was approved for this service by his health insurer, who told the owner that she could choose an agency, which would arrange for a home health aide to attend to the patient (see id.). The owner chose South Shore as the agency and then referred the claimant to South Shore so that she could be certified by the agency to care for the patient and receive compensation (see id. at pp. 7-8). However, the claimant was delayed in getting cleared to work for South Shore because she had to go to multiple medical appointments (see id. at p. 9). The owner stated that from the time the claimant arrived at her house (on June 27, 2014) until July 24, 2014 (when she was hired by South Shore) she did not work for the owner in any capacity (see id. at p. 11).

Regarding the date of accident, the owner testified that on July 17, 2014, her brother called her by telephone and advised that the claimant had fallen in the house. She told her brother to call an ambulance to take the claimant to the hospital (see id. at p. 13). An ambulance was summoned and later that night the claimant called her and she went to the hospital and picked up the claimant. To her knowledge, no one saw how the claimant fell (see id. at p. 14). The owner stated that a week after the accident, she asked the claimant if she anticipated any difficulty working for South Shore, and the claimant told her there was no problem (see id.). The owner also testified about the circumstances surrounding the claimant's termination on October 6, 2014, which she said involved an allegation by a mentally disabled patient that the claimant purchased a laptop valued at $1,000.00 for $10.00 (see id. at p. 16). She did not trust the claimant to remain in the house and told her to leave (see id.). The claimant refused and became hysterical, so the owner called the police (see id.). She offered to pay for the claimant to stay in a hotel until she got her next check, but she refused, so the owner dropped the claimant off at the Department of Social Services where the claimant could find housing (see id.). Once the claimant left her house, South Shore would no longer pay her (see id. at p. 17). The owner further stated that, before South Shore put the claimant on its books, the only work the claimant did at the house was cleaning and cooking for herself (see id. at p. 22). The patient in need of home health services received care from another individual, L.A., who was employed by South Shore for two to three weeks, until the claimant was certified by South Shore (see id. at pp. 30, 33).

At a hearing on February 3, 2016, the owner continued her testimony. She testified that, at the time of the July 17, 2014 accident, the claimant was at her house as a favor to the claimant's sister with the intention of getting the claimant a job with South Shore (see Hearing Testimony, 2/3/16, p. 7). At the time of the accident, her brother was in charge of taking care of the residents (see id. at p. 16). The claimant would have access to the pantry where the general food is kept if she wanted something, but she would not be getting food for the residents (see id. at pp. 14-15). The owner further explained that another individual, L.A., was employed by South Shore to take care of the same patient that the claimant later cared for, once she was certified by South Shore (see id. at p. 17). The owner denied ever cashing any checks from South Shore on behalf of L.A. and using some of the proceeds to pay the claimant $250.00 per week (see id. at pp. 19-21).

The human resources supervisor at South Shore testified at the February 3, 2016, hearing that the claimant began working on July 24, 2014, as a personal assistant for a patient living at the group home at 131 Avenue C (see id. at p. 23). Prior to July 24, 2014, the patient to whom the claimant was later assigned was assisted by another personal assistant by the name of L.A. (see id. at pp. 25-26). Regarding the process to be certified to work for South Shore, the supervisor testified that the individual would need to fill out an application at South Shore (see id. at p. 24). South Shore would then collect required information from the Department of Health, including results of the applicant's physical examination and tuberculosis test (see id.). The patient for whom the claimant worked entered into a contract with South Shore on June 13, 2014, to retain a personal assistant hired by them (see id. at p. 35).

At a hearing on April 20, 2016, the human resources supervisor at South Shore continued her testimony. She testified that South Shore hires home health aides and personal care assistants (see Hearing Transcript, 4/20/16, p. 4). She explained that South Shore takes applications for personal assistants, but they are not employees of South Shore; rather, personal assistants are the employees of the patients they serve through a Medicaid program, and South Shore facilitates the personal assistants being certified by the Department of Health to provide care to eligible patients (see id. at pp. 3-4, 14). She conceded that South Shore occasionally sent a nurse to the facility to ensure that the patient was receiving adequate care, but it is not up to South Shore to monitor the patient's care (see id. at pp. 9, 18). The general monitoring was up to the facility administrator, who in this case was the owner (see id. at pp. 9-10, 19). Despite personal assistants not being employees, under this Medicaid program the personal assistants submit time sheets to South Shore to get paid (see id. at p. 12). If a patient has a complaint with the level of service he or she is receiving from a personal assistant, the patient reports it to the administrator of the individual facility - not to South Shore (see id. at p. 17).

At the conclusion of testimony and oral arguments, the WCLJ found that the claimant was an employee of Sofia's Care Services and the owner of 131 Avenue C on July 17, 2014, which were uninsured (see id. at p. 38). The WCLJ found the claimant sustained work-related injuries to the back, left shoulder, and left elbow, and set the average weekly wage at $250.00, per the claimant's testimony (see id.). The WCLJ found no compensable lost time (see id.). The WCLJ assessed a penalty against Sofia's Care Services pursuant to WCL § 26-A, from the claimant's first day of work on June 28, 2014, to her date of injury on July 17, 2014, for a total penalty of $1,000.00 (see id.). The WCLJ discharged South Shore and its carrier and removed them from notice (see id. at p. 39). The findings made at the April 20, 2016, hearing are reflected in a decision filed April 25, 2016.

In an application filed on May 25, 2016, Sofia's Care Services sought administrative review of the April 25, 2016, WCLJ decision, arguing that the decision incorrectly found that an employer-employee relationship existed between it and the claimant on July 17, 2014. Sofia's Care Services argued that the claimant was staying at the group home only as a guest while she was awaiting approval of her South Shore application to work as a personal assistant to one of the group home patients. Sofia's Care Services also contended that the claimant filed this workers' compensation claim as an afterthought in response to being terminated.

In a rebuttal filed on June 14, 2016, the claimant argued that the WCLJ decision is supported by the evidence in the record and should therefore be affirmed. In particular, the claimant maintained that she credibly testified that she began working for the owner from June 28, 2014, until July 24, 2014, when she began working for South Shore.

In a rebuttal filed on June 24, 2016, South Shore and its carrier did not take any position on the issues raised by Sofia's Care Services on appeal, but argued only that South Shore was properly discharged and removed from notice by the WCLJ.

The Uninsured Employers Fund (UEF) did not file a rebuttal.

LEGAL ANALYSIS

Employer-Employee Relationship

"Whether an employer-employee relationship exists is a factual issue for the Board . . . Factors relevant [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, and the result can turn on the basis of any one or a combination of the factors (see Matter of Gregg v Randozzo, 216 AD2d 747 [1995]).

Here, claimant testified that she worked for Sofia's Care Services beginning June 28, 2014, until she began working for South Shore on July 24, 2014. According to claimant, during that time she worked at the group home run by the employer as a personal assistant, which involved cooking, doing laundry, running errands and house cleaning for the patients. Both the Board Panel majority and the dissent, as well as the WCLJ, found that an employer-employee relationship existed between claimant and Sofia's Care Services based on claimant's credible testimony. The Full Board likewise finds that the preponderance of the credible evidence in the record supports a finding that claimant was an employee of Sofia's Care Services on the date of accident.

Accident Occurring within the Scope of Employment

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's testimony that she was injured on July 17, 2014, when she slipped and fell on wet stairs while walking upstairs to bring a cookie to a patient, to be credible. Claimant testified that she treated on the date of accident at the Stony Brook Hospital emergency room. Although the emergency room records have not been submitted into evidence, the employer's owner testified that on July 17, 2014, her brother called her by telephone and advised that the claimant had fallen in the house; that she told her brother to call an ambulance to take claimant to the hospital; that an ambulance was summoned to take claimant to the hospital; and, that later that night the claimant called her and she went to the hospital and picked up the claimant.

Based on the testimony of the claimant and the owner, the Full Board finds that a preponderance of the evidence in the record supports a finding that claimant was injured at work on July 17, 2014, when she fell on the stairs.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed April 25, 2016, is AFFIRMED. No further action is planned by the Board at this time.