Claim of Schwenger v. NYU School of Medicine

Appeal from an amended decision of the Workers’ Compensation Board, filed March 28, 2013, which ruled that an employer-employee relationship existed between claimant and NYU School of Medicine.

Claimant obtained his doctorate in 1998, after which he performed laboratory research at NYU School of Medicine (hereinafter NYU) as a postdoctoral fellow. From June 2000 to June 2001, his salary was funded by a federal grant known as the Ruth L. Kirschstein National Research Service Award, which is administered through the National Institutes of

As a result of the exposure, claimant commenced an action in Supreme Court against NYU and related entities. The defendants in that case moved for summary judgment, arguing that claimant was NYU’s employee at the time of the accident and that his exclusive remedy was workers’ compensation benefits (see Workers’ Compensation Law § 29). Supreme Court found that the existence of an employer-employee relationship was a question of fact for the Workers’ Compensation Board to resolve and, among other things, stayed all proceedings in the civil action and directed the parties to obtain a ruling on that issue from the Board. The Board ultimately determined, in an amended decision, that claimant was an employee of NYU. Claimant now appeals.

Preliminarily, because the Board’s decision relates solely to the issue of employer-employee relationship, the present appeal would ordinarily be dismissed as being from an interlocutory decision (see Matter of Ogbuagu v Ngbadi, 61 AD3d 1198 , 1199 [2009]; Matter of Malkin v Love Taxi, 299 AD2d 681 , 682 [2002]). The rule barring appeals from such decisions reflects “our policy to discourage piecemeal review of the main issues in a compensation claim for the purpose of preventing purely dilatory appeals, [but] that policy should not be applied in such a manner as to preclude . . . the prompt review of threshold legal issues which may be dispositive of a claim against one or more parties” (Matter of McDowell v LaVoy, 59 AD2d 995 , 995 [1977]). Claimant here did not apply for workers’ compensation benefits and, indeed, the Board was only asked to answer the question of whether the Workers’ Compensation Law applied to claimant because it served as a “jurisdictional predicate to [claimant’s] civil action” (Liss v Trans Auto Sys., 68 NY2d 15 , 21 [1986]). Inasmuch as a threshold legal issue is presented for our review under these circumstances, the Board’s decision is properly before us (see Matter of McDowell v LaVoy, 59 AD2d at 995 ).

Turning to the merits, we affirm. Contrary to claimant’s assertion, the Board was not preempted by federal law from exercising jurisdiction over him. The requisite congressional intent to preempt “may be discerned in three ways: (1) expressly in the language of the [flederal statute; (2) implicitly, when the [federal legislation is so comprehensive in scope that it is inferable that Congress intended to fully occupy the ‘field’ of its subject matter; or (3) implicitly, when [s]tate law actually

Here, there is neither an explicit nor an implicit indication in any federal statute or regulation that Congress intended to preempt state workers’ compensation law. Claimant instead argues that an intent to preempt may be found in a “program announcement” circulated by NIH, which states that individuals “supported under the [grant program] are not considered to be in an employee-employer relationship with the NIH or the awardee institution,” and that said institution could not apply grant funds toward its workers’ compensation expenses. Those statements are made in the context of explaining the tax liability of individuals receiving grant monies, however, and NIH makes clear that “[t]he taxability of stipends . . . in no way alters the relationship between [those individuals] and institutions.” NIH further makes clear that, notwithstanding the guidance provided, it “takes no position on the status of a particular taxpayer.” Accordingly, assuming that the informally promulgated announcement could have preemptive effect (but see Fellner v Tri-Union Seafoods, L.L.C., 539 F3d 237 , 245-246 [3d Cir 2008], cert denied 556 US 1182 [2009]), its language does not “even arguably justif[y] the pre-emption of state” workers’ compensation law (Altria Group, Inc. v Good, 555 US 70 , 90 [2008]; see Matter of Cuevas v Americorps, 14 AD3d at 912 ).

Claimant additionally argues that the Board’s factual determination that an employer-employee relationship existed is not supported by substantial evidence in the record (see Matter of Hasbrouck v Harloff, 122 AD3d 1014 , 1014 [2014]). “In making such a determination, factors to be considered include control over the claimant’s work, method of payment, right to discharge, furnishing of equipment and relative nature of the work” (Matter of Malave v Beef & Bourbon, LLC, 114 AD3d 1006 , 1007 [2014] [citations omitted]; see Matter of Jennings v Avanti Express, Inc., 91 AD3d 999 , 999-1000 [2012]).

Claimant here worked in an NYU laboratory that was overseen by an NYU professor, Jan Vilcek, and claimant used

McCarthy, J.P., Lynch and Devine, JJ., concur.

Ordered that the amended decision is affirmed, without costs.