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Case # 50606477
Matter of T & D Painting LLC
Decision filed November 16, 2009
2009 NY Wrk Comp 50606477

Board Panel Decision

By: Board Members Bargnesi, Finnegan, and Libous

Ruling:

The full Board, at its meeting held on October 20, 2009, resolved that the memorandum of decision filed November 19, 2008, be rescinded and the matter be returned to this panel for further consideration.

Board member Libous replaces Board member Bell on this panel.

ISSUE

The issue presented for review is whether the claimant was an employee or an independent contractor.

PROCEDURAL BACKGROUND

Claimant, a painter, was injured on May 4, 2006, and brought this claim for workers' compensation benefits, alleging that he was employed by T&D Painting, LLC (T&D) at the time of his injury. T&D controverted the claim, alleging that claimant was an independent contractor and not an employee of T&D.

In a reserved decision filed on April 9, 2007, the Workers' Compensation Law Judge (WCLJ) found the claimant to be an employee of T&D and that T&D is uninsured, established the claim for a work-related injury to the left ankle, and made awards.

The Board Panel, by a decision filed September 18, 2007, reversed the WCLJ's decision. The Board Panel found that the credible evidence supported a finding that the claimant was an independent contractor and not an employee, and disallowed the claim.

The full Board, at its meeting held on July 15, 2008, granted Full Board Review, rescinded the Board Panel decision filed September 18, 2007. However, before the Board Panel could issue a new decision, the Appellate Division, Third Department, by a decision filed July 31, 2008, affirmed the Board Panel's September 16, 2007 decision. The court noted that although there was conflicting evidence in the record which could have supported a finding that claimant was an employee of T&D, the court would defer to the Board's credibility determination and would "not disturb the Board's finding that claimant was an independent contractor and, therefore, ineligible for workers' compensation benefits."

At its meeting on September 16, 2008, the full Board adopted the Appellate Division's decision as the decision of the Board, and referred the matter back to the Board Panel for further proceedings consistent with the court's decision. Thereafter, on November 19, 2008, The Board Panel issued a decision finding that for the reasons set forth in the Board Panel decision filed on September 18, 2007, claimant was an independent contractor when he was injured on May 4, 2006.

On September 16, 2008, the same day that the Full Board adopted the Third Department's July 31, 2008 decision, the Third Department vacated that decision based on a motion by the claimant, and replaced it with a new decision stating, in relevant part:

On July 15, 2008, claimant's application for full Board review was granted, the decision filed September 18, 2007 was rescinded and the case was referred to the Board for further consideration. Accordingly, the appeal must be dismissed as moot (see, Matter of Fabiano v Sears, 27 AD3d 884, 810 N.Y.S.2d 542 [2006]).

However, the court's decision was never filed with the Board, and the Board did not become aware of the court's new decision until after the Board Panel issued its November 19, 2008 decision finding that claimant was an independent contractor.

FACTS

On May 4, 2006, claimant, while working as a painter on a project at the Lake George Club, fractured his left ankle when one of the planks of the scaffold he was standing on broke. T&D, who was uninsured at the time of the accident, controverted the claim, alleging that claimant was an independent contractor.

The claimant testified that he responded to a help wanted ad for painters in the Post Star newspaper, and spoke to Tom M. The two men arranged a job interview at Tom M.'s house. The claimant met with Tom M., his son Anthony M. and Eric G.. He testified that there was no discussion about him being an independent contractor, but that there was some discussion about him obtaining his own insurance. Tom M. informed him that he would be paid $10 per hour and would work from 8:00 a.m. to 4:30 p.m. The first job was painting the exterior of the Lake George Club. He usually rode to the Lake George Club in a van with Anthony M. and Eric G., although on a few occasions he drove his own vehicle to the job site. He testified that Tom M. directed his work on the project, and that Tom M. furnished the tools, equipment and materials for the job. However, he had his own paint brushes, scraper and putty knife. He testified that Eric G. kept a record of his hours worked and Tom M. would pay him on Fridays in cash. According to the claimant, Tom M. had the authority to fire him. Claimant testified that he never worked as an independent contractor.

Tom M. testified that he is the sole proprietor of T&D. He contracted with the Lake George Club to paint their premises. He placed an ad in the paper looking for painters and received a call from the claimant. He interviewed the claimant and advised him that he was looking for independent contractors with their own materials, supplies and insurance. The claimant advised him that he did not have enough money to buy insurance. Tom M. and the claimant agreed on a rate of pay of $10 per hour and that claimant would receive a 1099. Tom M. testified that he did not supply any equipment for the job but that his son, Anthony, who is an independent contractor, owns the necessary equipment, such as ladders and scaffolding, which he supplied for Lake George Club project. However, Tom M. later testified that he did furnish a lift for the job, which he rented, and that he was given cash by the Lake George Club to purchase stain, which he then delivered to the job site.

Tom M. testified that Eric G., who was also an independent contractor, was the supervisor on the job and in charge of paying the claimant. Tom M. testified he did not believe he had the authority to fire the claimant because he was an independent contractor. He would pay the claimant weekly based on the hours worked as recorded by Eric G..

Eric G. testified that he is a self-employed private contractor who conducts business with T&D. He worked for T&D on the Lake George Club project and was in charge of the crew that included the claimant. He did not have the authority to fire the claimant because he was not the boss. Tom M. hired the claimant. Tom M. testified son, Anthony, owned the equipment on the job and that Tom M. purchased stain and glazing for the project.

In a reserved decision filed on April 9, 2007, the WCLJ found the claimant to be an employee of T&D, found that T&D was uninsured on the date of accident, established the claim for a work-related injury to the left ankle, and made awards.

T&D seeks review of the WCLJ's decision and contends that the claimant was an independent contractor.

LEGAL ANALYSIS

Factors to be considered when determining whether an employer-employee relationship exists include the right to control the work, the method of payment, the furnishing of equipment, the right to discharge, and the relative nature of the work; however, no single factor is dispositive (see Matter of Fina v New York State Olympic Regional Dev. Auth., 7 AD3d 939 [2004]; Matter of Topper v Cohen's Bakery, 295 AD2d 872 [2002]; Matter of Semus v University of Rochester, 272 AD2d 836 [2000]; Matter of Park v Lee, 53 AD3d 936 [2008]). That claimant is designated an "independent contractor" by the employer is not dispositive of the issue (see Matter of Gallagher v Houlihan Lawrence Real Estate, 259 AD2d 853 [1999]).

The preponderance of the evidence clearly supports a finding that claimant was an employee of T&D. Tom M., the sole proprietor of T&D, contracted with the Lake George Club to paint the clubs premises; claimant was hired as a painter to work on the Lake George Club project (relative nature of the work). Tom M., through Eric G., directed claimant's work. Tom M., through his son Anthony, supplied equipment, such as ladders and scaffolding, for the project, and admitted that he himself provided a rented lift and stain. Claimant was paid an hourly wage. These factors plainly suggest that an employer-employee relationship existed between the claimant and T&D.

Therefore, the Board Panel finds that claimant was an employee of T&D at the time of his injury.

CONCLUSION

Accordingly, the WCLJ's reserved decision filed April 9, 2007, is AFFIRMED. The case should be returned to the hearing calendar for appropriate awards, and causally related treatment.

All concur.