| Matter of Enriquez v Home Lawn Care & Landscaping, Inc. |
| 2010 NY Slip Op 07460 [77 AD3d 1149] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Marco Enriquez, Respondent, v HomeLawn Care and Landscaping, Inc., Appellant, and Uninsured Employers' Fund, Respondent.Workers' Compensation Board, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Iris A. Steel of counsel), forWorkers' Compensation Board, respondent.
McCarthy, J. Appeals (1) from a decision of the Workers' Compensation Board, filed July 3,2009, which, among other things, ruled that claimant's injury arose out of and in the course of hisemployment, and (2) from a decision of said Board, filed February 4, 2010, which denied arequest by Home Lawn Care and Landscaping, Inc. for reconsideration and/or full Board review.
Claimant filed a claim for workers' compensation benefits after he was injured when he felloff a ladder while doing work for Home Lawn Care and Landscaping, Inc. Following hearings, a[*2]Workers' Compensation Law Judge determined, among otherthings, that an employer-employee relationship existed between claimant and Home Lawn Careat the time of claimant's injury and that the injury arose out of and in the course of hisemployment. Upon review, the Workers' Compensation Board affirmed the Workers'Compensation Law Judge's finding that claimant's injury arose out of and in the course of hisemployment. The Board also determined that, as a result of Home Lawn Care failing to submit atimely notice of controversy pursuant to Workers' Compensation Law § 25 (2) (b), it wasprecluded from contending that claimant was not an employee, that claimant did not sustain anaccidental injury or that the injury did not arise out of claimant's employment. The Boardsubsequently denied an application from Home Lawn Care for reconsideration and/or full Boardreview and these appeals ensued.
Initially, inasmuch as there is no evidence that a notice of indexing was ever mailed to HomeLawn Care, a fact conceded by the Board on appeal, we agree with Home Lawn Care that theBoard erred in finding a violation of Workers' Compensation Law § 25 (2) (b) (seeMatter of Merendino v Village of Pawling, 152 AD2d 762, 763 [1989]; compare Matter of McDonald-Besheme vVerizon Wireless, Inc., 24 AD3d 1068, 1069 [2005]). Regarding the Board'sdetermination that an employer-employee relationship existed, such a determination is a factualissue for the Board to resolve and its finding will be upheld if supported by substantial evidence(see Matter of Lai Pock Lew vYounger, 69 AD3d 1161, 1162 [2010]; Matter of Kane v Unger, 69 AD3d 991, 992 [2010]). Although nosingle factor is dispositive in making the determination, "[f]actors relevant to such a findinginclude the right to control the work and set the work schedule, the method of payment, thefurnishing of equipment, the right to discharge and the relative nature of the work" (Matter of Bugaj v Great Am. Transp.,Inc., 20 AD3d 612, 614-615 [2005]; see Matter of Brown v City of Rome, 66 AD3d 1092, 1092 [2009]).Here, both claimant and James Egloff, Home Lawn Care's owner, testified that claimant hadperformed work, consisting mainly of lawn mowing and leaf removal, for Home Lawn Care forseveral years. Both parties also testified that Egloff told claimant where to work each day,supplied the equipment to perform the work and claimant drove Home Lawn Care's truck to thework locations. The record also contains evidence that claimant wore a shirt with Home LawnCare's name on it and was paid weekly in cash. Claimant commenced a personal injury actionagainst Home Lawn Care and others, wherein his personal injury attorney represented in a bill ofparticulars that claimant was self-employed, but claimant testified in the current matter that hewas a Home Lawn Care employee.[FN1]Home Lawn Care's owner filed a form in which he referred to claimant as an employee[FN2]and testified that the company had one employee—claimant—although he latertestified that claimant worked for the company as a self-employed independent contractor. Therecord contains substantial evidence supporting the Board's determination that anemployer-employee relationship existed between claimant and Home Lawn Care,notwithstanding some evidence to the contrary (see Matter of Bran v Wimbish, 73 AD3d 1378, 1380 [2010], lvdismissed 15 NY3d 818 [2010]).[*3]
"Even though an employer-employee relationship wasestablished, claimant can only receive workers' compensation benefits if his injury arose both outof and in the course of his employment" (Matter of Nkrumah v Thomas, 61 AD3d 1325, 1327 [2009][citations omitted]). Inasmuch as claimant was injured when he fell off a ladder while cleaninggutters for a Home Lawn Care customer at a specified job site, his injury arose during the courseof his employment. Therefore, "a presumption arises that it also arose out of the scope of hisemployment, unless the presumption is successfully rebutted by substantial evidence to thecontrary" (Matter of Marotta v Town &Country Elec., Inc., 51 AD3d 1126, 1127 [2008] [internal quotation marks and citationsomitted]; see Workers' Compensation Law § 21 [1]; Matter of Camino v ChappaquaTransp., 19 AD3d 856, 856-857 [2005]). Here, Home Lawn Care argues that claimantwas performing an act that was strictly forbidden, thus outside the scope of his employment,when he fell off the ladder (see e.g. Matter of Appleberry v Moskowitz, 50 AD2d 1001,1002 [1975]). In support, Egloff testified that he had previously informed claimant that Egloffwas the only one allowed to climb ladders and, accordingly, that he had never requested thatclaimant clean any of his customer's gutters, including on the day in question. In contrast,claimant testified that Egloff had never instructed him not to climb a ladder and that Egloff hadspecifically told him to clean the gutters that day. Based upon our review of the record, andaccording appropriate deference to the Board's credibility determinations (see Matter of Branv Wimbish, 73 AD3d at 1379-1380), we conclude that Home Lawn Care failed to rebut thepresumption that claimant's injury arose out of and in the course of his employment.
Cardona, P.J., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the decisions aremodified, without costs, by reversing so much thereof as found that Home Lawn Care andLandscaping, Inc. had violated Workers' Compensation Law § 25 (2) (b), and, as somodified, affirmed.
Footnote 1: While Home Lawn Care assertsthat claimant admitted in a sworn statement that he was self-employed, the attorney—notclaimant—signed the supplemental bill of particulars and claimant testified that he cannotread English.
Footnote 2: Although the corporation'sattorney filed the form, the owner testified that he supplied the information to complete the formand reviewed it before it was submitted to the Board.