Claim of Colamaio-Kohl v. Task Essential Corp.

Appeal from a decision of the Workers’ Compensation Board, filed July 25, 2016, which ruled, among other things, that an employee-employer relationship existed between claimant and Task Essential Corp. and awarded workers’ compensation benefits.

Claimant fell on his way to a restroom while he was working as a “skin care specialist and spokesmodel” in a Bloomingdale’s store. Claimant applied for workers’ compensation benefits based on claimed injuries and alleged that, at the time of the accident, he was an employee of Task Essential Corp., the owner of the skin care line. Following a hearing, the Workers’ Compensation Board found, among other things, that claimant sustained an accidental injury arising out of and in the course of his employment with Task Essential and awarded workers’ compensation benefits. Task Essential now appeals.^[1]

“Whether there exists an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its determination will be upheld when supported by substantial evidence” (Matter of Malave v Beef & Bourbon, LLC, 114 AD3d 1006 , 1007 [2014] [citations omitted]; accord Matter of Saratoga Skydiving Adventures v Workers’ Compensation Bd., 145 AD3d 1333 , 1334 [2016]). Relevant factors to this determination include “the right to control the work and set the work schedule, the method of payment, the furnishing of equipment, the right to discharge and the relative nature of the work at issue” (Matter of Duma v Baca, 83 AD3d 1228 , 1228-1229 [2011] [internal quotation marks and citation omitted]). Claimant testified that his supervisor, who represented himself as an employee of Task Essential, set his schedule, which varied week to week and included working at two different stores. Claimant further explained that he received training for the position from his Task Essential supervisor and Task Essential informed him of a required dress code. Part of claimant’s job entailed meeting sales goals, he was paid an hourly rate and he would ask permission from a Task Essential supervisor before leaving his post to use the restroom. Claimant explained

Likewise, given the evidence in the record of Task Essential’s ongoing control over claimant, substantial evidence supports the Board’s determination that claimant was not a special employee of Bloomingdale’s or its owner, Macy’s Inc. (see Matter of Oppedisano v Randall Elec., 285 AD2d 759 , 760 [2001]). Moreover, in the absence of evidence in the record that Macy’s or Bloomingdale’s had any contract for work that they subcontracted to Task Essential, the Board properly rejected Task Essential’s argument that Workers’ Compensation Law § 56 rendered Macy’s or Bloomingdale’s liable (see Matter of Dewhurst v Simon, 295 NY 352 , 353 [1946]; Matter of Griffin v New York State Dept. of Commerce, 141 AD2d 961 , 962 [1988]; Matter of Rothman v Holland, 42 AD2d 1010 , 1011 [1973]).

Next, we will not disturb the Board’s determination that late notice should be excused, because Task Essential had actual notice of the accident and was not prejudiced, if that determination is supported by substantial evidence (see Workers’ Compensation Law § 18; Matter of Lopadchak v R.W. Express LLC, 133 AD3d 1077 , 1077 [2015]). Claimant testified that, after he fell, he phoned his supervisor, whom he identified as an employee of Task Essential, and informed him of the accident. Although the supervisor testified that claimant stated that he was uninjured by the fall, the Board was free to credit claimant’s testimony to the contrary (see Matter of Tangorre v Tech Home Elec., LLC, 124 AD3d 1183 , 1184 [2015]; Matter of Regan v City of Hornell Police Dept., 124 AD3d 994 , 996 [2015]). Accordingly, as there is no proof of prejudice, substantial evidence supports the determination that claimant’s late notice of