Third Department Issues Trio of Workers’ Comp Decisions | Weber Gallagher Simpson Stapleton Fires & Newby LLP
First time in a while the 3rd Dept dropped some workers’ compensation decisions. There were three 3rd Dept decisions on WC cases issued this week.
Trickey v. Black River Plumbing
In a twist, a claimant who was a roofing truss installation specialist wanted to be classified as an independent contractor. Claimant who fell through the roof he was working on had a third-party personal injury suit against Black River, the property owner. Black River, as a strategy, sought a ruling with the Workers’ Compensation Board that claimant was an employee, thus entitled only to the exclusive remedy of workers’ compensation.
Claimant denies he was an employee. Black River argued that it was a general construction contractor and an employer pursuant to the Construction Fair Play Act, Labor Law 861-c(1). Under the Construction Fair Play Act, the issue of employment must be decided either using the ABC Test or establishing a separate business entity satisfying all 12 criteria in Labor Law 861-c(2). [The control test is used to determine employment in other situations]. The Law Judge found that claimant was an employee of Black River, which was affirmed by the Board Panel. Claimant appealed and the 3rd Dept. held that the Board did not analyze the issue correctly. The 3rd Dept held that the Board did not use the ABC test, rather it focused on the 12-factor criteria. Under the ABC Test, employment is presumed unless “(a) the individual is free from control and direction in performing the job, both under his or her contract and in fact; (b) the service must be performed outside the usual course of business for which the service is performed; and (c) the individual is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue.” The case was remitted back to the Board to decided the factors of the ABC Test.
Cabrera v New York City Housing Authority
The 3rd Dept. held that there are no attorney fees, as a matter of law, on a late payment penalty.
Romero v. Akorn Inc.,
Claimant had a total knee replacement in 2017, and was denied a SLU award in 2019 because she failed to demonstrate labor market attachment for non-schedule classification for head, neck, and back injuries. This case reviewed whether a claimant could now get a SLU award, because of a change in the law after the 2019 determination [Matter of Arias v City of New York, 182 AD3d (3d Dept 2020], permitting both SLU and nonscheduled awards. The 3rd Dept. held that claimant could get a SLU award, holding the “Board’s position against retroactivity in this case seems to be inconsistent with its policy position governing its procedures for determining awards for certain SLUs, wherein the Board states that, “[i]f the Board issued a prior decision contrary to the newly issued . . .decisions [in Matter of Taher and its progeny as was the case here], the Board will reopen its cases upon request,” Citing, Workers’ Compensation Bd Release Subject No. 046-1211 [Mar. 13, 2020]).
[View source.]
