Choto v. Consol. Lumber Transp., Inc.

• Decision Date: 10 March 2011
• Citation: 82 A.D.3d 1369,918 N.Y.S.2d 268
• Parties: In the Matter of the Claim of Angel CHOTO, Respondent, v. CONSOLIDATED LUMBER TRANSPORT, INC., Appellant, et al., Respondent. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 268

82 A.D.3d 1369

In the Matter of the Claim of Angel CHOTO, Respondent,

v. CONSOLIDATED LUMBER TRANSPORT, INC., Appellant, et al., Respondent.Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

March 10, 2011.

Anthony J. Centone, P.C., White Plains (Anthony J. Centone of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel), for Workers' Compensation Board respondent.

Before: PETERS, J.P., KAVANAGH, STEIN, GARRY and EGAN JR., JJ.

EGAN JR., J.

Appeal from a decision of the Workers' Compensation Board, filed October 2, 2008, which ruled, among other things, that an employer-employee relationship existed between claimant and Consolidated Lumber Transport, Inc.

Claimant, the owner-operator of a truck and trailer, fell off the top of a loaded flatbed trailer in April 2006, striking the concrete pavement and suffering eight broken bones in his face, a broken wrist and a fractured knee. Six months later, claimant submitted a workers' compensation claim that listed as his employer Consolidated Lumber Transportation, Inc.—for which claimant hauled lumber pursuant to a lease agreement. Following hearings to determine whether an employee-employer relationship existed, a Workers' Compensation Law Judge found that an employment relationship had been established. On appeal, the Workers' Compensation Board affirmed and Consolidated now appeals.

Whether an employee-employer relationship exists is a determination to be made by the Board and it will not be disturbed if supported by substantial evidence ( see Matter of Smallwood v. Mereda Realty Corp., 75 A.D.3d 873, 874, 905 N.Y.S.2d 358 [2010]; Matter of Bran v. Wimbish, 73 A.D.3d 1378, 1379, 901 N.Y.S.2d 398 [2010], lv. dismissed 15 N.Y.3d 818, 908 N.Y.S.2d 150, 934 N.E.2d 884 [2010] ). Factors relevant to that determination include the right to control theclaimant's work, the method of payment, the right to discharge, the furnishing of equipment and the nature of the work, and no single factor is dispositive ( see Matter of Perez v. Licea, 74 A.D.3d 1672, 1673, 903 N.Y.S.2d 606 [2010], lv. denied 15 N.Y.3d 711, 910 N.Y.S.2d 36, 936 N.E.2d 917 [2010]; Matter of Bran v. Wimbish, 73 A.D.3d at 1379, 901 N.Y.S.2d 398).

Here, we find that substantial evidence does not support the Board's determination and we, therefore, reverse. Initially, central to its finding that claimant was an employee, the Board found that he could only work for other carriers if the lease agreement with Consolidated was canceled. However, that finding is contradicted by the record. The lease agreement itself states that claimant could haul loads for another carrier with written permission from Consolidated, a policy that was confirmed by Consolidated's witness. Notably, the policy requiring written permission is compelled by federal regulations that require that Consolidated have "exclusive possession, control, and use of the equipment for the duration of the lease" and, thus, should not be found to be dispositive of an employee-employer relationship (49 CFR 376.12[c][1], [4]; see generally Matter of Leazard [TestQuest, Inc.-Commissioner of Labor], 74 A.D.3d 1414, 1414-1415, 903 N.Y.S.2d 198 [2010]; Matter of Wannen [Andrew Garrett Inc.-Commissioner of Labor], 57 A.D.3d 1029, 1030, 868 N.Y.S.2d 399 [2008] ).¹

Additionally, the Board cited as evidence of an employment relationship the fact that Consolidated's dispatcher notified claimant as to where to pick up and deliver each shipment. However, we find that this lone fact cannot represent substantial evidence in light of the overwhelming attendant circumstances. The record demonstrates that claimant owned, operated, maintained and repaired his own truck and trailer, he provided his own equipment, including the straps, tarps and chains used to secure a load, he paid for his own...