Claim of Fitzpatrick v. Holimont, Inc.

Mercure, J. Appeal from a decision of the Workers’ Compensation Board, filed November 22, 1996, which ruled that an employer-employee relationship existed between claimant and Holimont, Inc. In March 1994, while performing her duties as a member of the ski patrol at Holimont, Inc., a ski area in Cattaraugus County, claimant was seriously injured in a collision with a snowmobile. Following a hearing, it was determined that an employer-employee relationship existed between claimant and Holimont; the decision was affirmed by the Workers’ Compensation Board upon administrative review. Claimant appeals. Whether an employer-employee relationship exists is a factual matter for the Board to resolve and its determination must be upheld if supported by substantial evidence, even if other evidence in the record could support a contrary conclusion (see, Matter of La Celle v New York Conference of Seventh-Day Adventists, 235 AD2d 694, lv dismissed 89 NY2d 1085; Matter of Long v Schenectady County Young Men’s .Christian Assn. [YMCA], 227 AD2d 723). While no one factor is dispositive of the issue, relevant factors include the right to control the claimant’s work, the method of payment, the right to discharge, the furnishing of equipment and the relative nature of the work (see, id.). Here, Holimont pays the cost of operating the ski patrol, provides workers’ compensation coverage for the members of the ski patrol and vaccinates members of the ski patrol against x Hepatitis-B at its own expense. Furthermore, according to the handbook approved by Holimont and supplied to the ski patrol, Holimont retains the right to discharge and discipline any [716] member of the ski patrol. Holimont also designates the times that the ski patrol inspects and “sweeps” the slopes, during which time the ski patrol reports the condition of the slopes via a two-way radio supplied by Holimont; the report is then used to determine whether the slopes will be opened or closed. Members of the ski patrol wear a parka bearing the name Holimont Ski Patrol. Holimont subsidized claimant’s purchase of the parka and, upon turning the parka in, claimant was reimbursed $240 out of the $250 that she paid for it. In addition, testimony established that, although not paid a salary per se, ski patrol members are given free skiing privileges for the season and other benefits in exchange for their participation in patrolling the ski slopes. In view of the foregoing, we conclude that substantial evidence supports the decision that claimant was an employee of Holimont. Briefly addressing a few of the points raised in the dissenting opinion, we first note our disagreement with the dissent’s reliance upon the decision of the Court of Appeals in Matter of Camphill Vil. v Workmen’s Compensation Bd. (23 NY2d 202). There, the sole issue before the Court was whether “coworkers” for a tax-exempt nonprofit membership corporation organized to house, train and rehabilitate mentally handicapped persons aged 16 years and over were employees under the Disability Benefits Law (Workers’ Compensation Law §§ 200-242) or, rather, whether they were exempt from coverage as “volunteers in and for a religious, charitable or educational institution” (Workers’ Compensation Law § 201 [5]). Notably, Workers’ Compensation Law § 2 (4), which controls here, has no corresponding exemption, rendering that authority wholly inapt. We are also unpersuaded by the dissent’s portrayal of the Holimont Ski Patrol as a wholly independent entity exercising exclusive direction and control over the ski patrollers’ activities. To the contrary, the record supports Holimont’s contention that the ski patrol’s functions were inextricably intertwined with the operation of the facility and, in fact, that the ski patrollers who directed claimant’s activities were themselves Holimont’s employees. Crew III, Yesawich Jr. and Peters, JJ., concur.