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Claim of Duma v. Baca

83 A.D.3d 1228 Court N.Y. App. Div. Decision date 2011-04-14 English

Delivered by Peters, J.P.

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In the Matter of the Claim of Agim Duma, Claimant, v Gentian Baca, Doing Business as A&G Cleaning Services, Appellant. Workers’ Compensation Board, Respondent.
[921 NYS2d 389]

Appeal from a decision of the Workers’ Compensation Board, filed October 5, 2009, which ruled that an employer-employee relationship existed between claimant and Gentian Baca, doing business as A&G Cleaning Services.

While making a delivery for Gentian Baca, doing business as A&G Cleaning Services (hereinafter A&G), claimant was struck by an automobile. Claimant sought workers’ compensation benefits and, following hearings, a Workers’ Compensation Law Judge determined that an employer-employee relationship existed between him and A&G. The Workers’ Compensation Board affirmed upon review, and A&G now appeals.

We affirm. Whether an employer-employee relationship existed presents a factual issue for the Board, and its determination thereof will not be disturbed if supported by substantial evidence in the record (see Matter of Enriquez v Home Lawn Care & Landscaping, Inc., 77 AD3d 1149 , 1150 [2010]; Matter of Lai Pock Lew v Younger, 69 AD3d 1161 , 1162 [2010]). No single fact is dispositive in making that determination, including that a “non-employment application” signed by claimant states that he was not A&G’s employee (see Matter of Brown v City of Rome, 66 AD3d 1092 , 1092 [2009]).[1] Instead, the Board considers all relevant factors, such as “the right to control the work and set the work schedule, the method of payment, the

* We note that claimant, who needed an interpreter to testify, stated that this document was not explained to him when he signed it and that he did not understand it.

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furnishing of equipment, the right to discharge and the relative nature of the work at issue” (Matter of Bugaj v Great Am. Transp., Inc., 20 AD3d 612 , 614-615 [2005]; see Matter of Enriquez v Home Lawn Care & Landscaping, Inc., 77 AD3d at 1150 ). Here, A&G provided trucks for claimant, who made deliveries on a schedule and route set by it, and retained the right to discharge him upon notice. A&G bore the routine expenses associated with the trucks, and claimant stated that A&G reimbursed him for tolls and any traffic fines imposed in the course of his work. Claimant and another driver further testified that A&G paid them a set weekly amount for their work. Notwithstanding evidence in the record that could support a contrary result, we are satisfied that the foregoing constitutes substantial evidence supporting the Board’s determination that claimant was A&G’s employee (see Matter of Joyner v Event Design Assoc., Inc., 40 AD3d 1278 , 1279-1280 [2007]; Matter of Fisher v KJ Transp., 27 AD3d 934 , 935 [2006]).

We have considered A&G’s remaining arguments and find them to be without merit.

Spain, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the decision is affirmed, without costs.

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