Saratoga Skydiving Adventures v. Workers' Comp. Bd.

• Decision Date: 21 December 2016
• Citation: 145 A.D.3d 1333,2016 N.Y. Slip Op. 08575,42 N.Y.S.3d 696
• Parties: In the Matter of SARATOGA SKYDIVING ADVENTURES, Appellant, v. WORKERS' COMPENSATION BOARD, Respondent.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1333
42 N.Y.S.3d 696
2016 N.Y. Slip Op. 08575

In the Matter of SARATOGA SKYDIVING ADVENTURES, Appellant,
v.
WORKERS' COMPENSATION BOARD, Respondent.

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

Dec. 21, 2016.

42 N.Y.S.3d 697

Stockton, Barker & Mead, LLP, Troy (Matthew R. Mead of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York City (Steven Segall of counsel), for respondent.

Before: McCARTHY, J.P., LYNCH, ROSE, CLARK and AARONS, JJ.

LYNCH, J.

145 A.D.3d 1333

Appeal from a decision of the Workers' Compensation Board, filed March 11, 2015, which denied the application of Saratoga Skydiving Adventures for redetermination review of a stop-work order issued pursuant to Workers' Compensation Law § 141–a.

On August 15, 2014, an investigator with the Workers' Compensation Board, Kenneth Dippel, made an airport field visit regarding Saratoga Skydiving Adventures in response to fatalities following an airplane crash weeks earlier. Dippel spoke to Bob Rawlins, the owner of Saratoga Skydiving, who indicated that he did not have workers' compensation insurance because his workers were all independent

42 N.Y.S.3d 698

contractors.¹ Dippel observed Jason Wood, who acknowledged that he worked as a pilot and tandem jump instructor for Saratoga Skydiving, helping Rawlins move parts of the wreckage of an airplane onto a Saratoga Skydiving truck. Wood indicated that he was not being paid to help move the wreckage. Based upon this information, a stop-work order was issued that day against Saratoga Skydiving for failing to secure workers' compensation coverage (see Workers' Compensation Law §§ 50, 141–a[4] ). Saratoga Skydiving thereafter applied for a redetermination review of the stop-work order, relying on an affirmation of its attorney asserting that it had no employees (see 12 NYCRR 308.5 ), which was opposed by the Uninsured Employers' Fund

145 A.D.3d 1334

(see Workers' Compensation Law § 26–a[5] ).² after a hearing at which dippel, wood and RAWLINS TESTIFIED, A Workers' Compensation Law Judge denied the application to lift the stop-work order. Saratoga Skydiving appeals.

We affirm. The stop-work order was issued against Saratoga Skydiving pursuant to Workers' Compensation Law § 141–a, which provides added enforcement authority against employers who fail to secure proper workers' compensation coverage (see Matter of Mamoroneck Vil. Tile Distribs., Inc. v. Workers' Compensation Bd., 68 A.D.3d 1423, 1424, 893 N.Y.S.2d 641 [2009] ). Such a failure by an employer is deemed to be “an immediate serious danger to public health, safety or welfare sufficient to justify service by the chair of a stop-work order” (Workers' Compensation Law § 141–a[4][a] ). Saratoga Skydiving, which conceded that it did not have workers' compensation insurance for its skydiving business, challenges the issuance of the stop-work order and the denial of the request to lift that order, claiming that the evidence did not establish that it had an employer-employee relationship with its workers.

“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 A.D.3d 1006, 1007, 980 N.Y.S.2d 592 [2014] [citations omitted] ). “In making such a determination, factors to be considered include control over the ... work, method of payment, right to discharge, furnishing of equipment and relative nature of the work” (Matter of Schwenger v. NYU Sch. of Medicine, 126 A.D.3d 1056, 1058, 3 N.Y.S.3d 465 [2015] [internal quotation marks and citations omitted], lv. dismissed 26 N.Y.3d 962, 17 N.Y.S.3d 79, 38 N.E.3d 825 [2015] ).

Dippel testified that he observed Wood, an acknowledged pilot and jump instructor for Saratoga Skydiving, assisting Rawlins in loading plane wreckage onto a truck and Wood admitted that he was doing this work on behalf of Saratoga Skydiving, albeit without pay.³ After conferring with his supervisor, Dippel issued the stop-work order. Operation of an aircraft is defined as “hazardous employment” (Workers' Compensation Law §...