Claim of Harvey v. Allegany Timber & Land Co.

Kane, J. P. Appeal from a decision of the Workers’ Compensation Board, filed October 3,1988. Claimant, a logger, was severely injured when a tree fell upon him while he was cutting wood for Allegany Timber & Land Company, Inc. (hereinafter Allegany). The sole issue on this appeal is whether there is substantial evidence in the record to support the decision of the Workers’ Compensation Board that claimant was, at the time of his injury, an employee of Allegany and not an independent contractor. The record demonstrates that while at work for Allegany, claimant was supplied with a bulldozer where necessary, was directed what type and size of tree to cut and was subject to being discharged by Allegany upon their determination that his work was unsatisfactory. There was other evidence in the record which would support a finding that claimant was an independent contractor. However, the resolution of such a factual issue is within the exclusive fact-finding function of the Board (see, Matter of Agnello v Ippolito, 132 AD2d 733; Matter of Hopkins v Players’ Three, 99 AD2d 912) and, where, as here, there is substantial evidence to support its decision, it must be affirmed. Decision affirmed, with costs to the Workers’ Compensation Board. Kane, J. P., Weiss, Levine, Mercure and Harvey, JJ., concur.