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THIRD DISTRICT WEB PAGEYOUR DISTRICT REPS
EMPLOYEE-EMPLOYER RELATIONSHIP UNDER THE WORKERS' COMPENSATION LAW
The remedy provided by the Workers’ Compensation Law is the exclusive remedy of the employee against his employer ( see Acevedo v. Consolidated Edison Co., 189 AD2d 497 [1993], appeal dismissed 82 NY2d 748 ). Because the benefits under the Workers’ Compensation Law (WCL) are limited, often injured employees would rather file a more lucrative personal injury or wrongful death claim. Because an employee cannot sue their employer for civil remedies, the question then becomes what is an employee-employer relationship. In other words, how do you recognize employment so that the WCL would apply and who makes that determination. The courts have held that the existence of an employer-employee relationship is a question of fact for the Workers’ Compensation Board to resolve (Matter of Winglovitz v Agway, Inc., 246 AD2d 684 [1998]. Although no one factor is dispositive, consideration is given to the right to control the claimant's work; the method of payment; the right to discharge; the furnishing of equipment; and the relative nature of the work (Matter of LaCelle v New York Conference of Seventh-Day Adventists, 235 AD2d 694 [1997]). In Matter of LaCelle,
Ron LaCelle was a student at In Matter of Long v. Schenectady County Young Men’s Christian Association (YMCA), 227 AD2d 723 (1996) the Court affirmed the determination that the participant in a camp counselor aide training program was an “employee” of the organization that sponsored the program for Workers’ Compensation purposes. Karen Long received a reduction in tuition to attend camp and free room and board in exchange for her participation in the program. Her duties included helping counselors with classes and supervising campers, with whom she shared a cabin. She was required to obtain working papers to participate in the program. She could have been asked to leave camp if her conduct became undesirable, and she was provided with all necessary equipment. In Matter of Park v. Lee, 53 AD3d 936 (2008) the Court affirmed the finding of the Board that the claimant was not an employee. In this case the claimant owned and operated a delivery truck that delivered produce for Semok Lee. Park testified that he owned his delivery truck, paid for the truck's gas and repairs, paid for his own helpers when necessary and listed himself as self-employed on his tax returns. "The existence of an employer-employee relationship is a factual issue for the Board to resolve and its finding must be upheld if supported by substantial evidence," even where there is evidence in the record that could support a contrary result (Matter of Topper v Cohen's Bakery,295 AD2d 872, 872-873,[2002]). There are many instances where an injured person would prefer to be considered an employee in order to get workers compensation benefits and equally as many instances where an injured person would prefer to be considered not an employee so that they may file a personal injury claim. In all instances, the Court will remand the case back to the Workers’ Compensation Board for a determination of employee-employer relationship before proceeding with a civil claim. Camille Sianoenders, Esq. The above article is the opinion of the author
and not the opinion of the Workers'Compensation
Board. THIRD DEPARTMENT REVIEWREVIEW THE LATEST CASES & DECISIONS FROM THE THIRD DEPARTMENT CLICK HERERelated Files
Workers' Comp - Election of Remedies WCL 11 (Adobe PDF File)Workers' Comp - Workplace Assaults WCL 10 (Adobe PDF File) |
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