Claim of Duma v. Baca

Peters, J.P. 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]).* 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 [1229] 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. Footnotes [*] 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.