Surveillance, Attorney Fees, and Employment Status: Recent 3rd Dept. Decisions

There were three new 3^rd Dept. cases of note from yesterday (two workers’ compensation cases and another relevant case):

• Hurley v. Lawrence School District. This case would seem to be self-evident. The claimant, a special education teacher with previously established work-related asthma, was given an air conditioned off-site library assignment because he complained that his classroom was too close to construction in the building. The teacher did not report to the library assignment and the Board found that he voluntarily withdrew from the labor market. Despite this, claimant appealed and tried to argue that he was too ill to work in the library and that his doctors told him not to work. The 3^rd Dept. affirmed the Board’s decision. The court noted that claimant testified that he always would wear a mask in public places, but was caught on surveillance video in a restaurant, a convenience store, and a grocery store not wearing a mask.
• Cooper v. NYCH&HC. Here, the claimant’s attorney argued that they were entitled to an attorney fee based on a gross SLU award, rather than a net award. The Board disagreed, and the 3^rd Dept. affirmed. The claimant, a behavioral health professional, was paid in full by his employer during a period of time he was out of work after being attacked by a patient. Ultimately, the claimant was awarded a SLU of 15% for his right leg, and 15% for the right arm. The Board directed a set off for the wages paid, but claimant’s attorney wanted his fee based on a pre-set off [gross] amount. The 3^rd Dept., in reviewing the statute regarding attorney fees, WCL 24(2), held that there was no difference between whether the wages were paid by the employer, or benefits made by the carrier. Not that claimant’s counsel are greedy.
• Lo v. Go New York Tours Inc. This is an unemployment insurance case, notable because it involves the issue of employee/employer and whether the claimant was an independent contractor. Here, a local sightseeing tour bus company used 100-150 street ticket sellers on the street to sell tickets throughout NYC. A ticket seller filed for unemployment benefits, and the tour company argued that the ticket seller was an independent contractor. The ticket seller signed an independent contractor agreement, but the Court found that language prohibiting selling competitor tickets and nondelegation provision among other restrictive provisions was evidence of control. The tour company provided all necessary equipment, including the credit card terminal and advertising. It is likely that the ticket sellers were able to utilize their own methods (although not stated), and the Court did note the existence of evidence that could support a different conclusion, but ultimately there really was not much here to demonstrate an independent relationship.