New York 3rd Dept. Weighs In: What Does it Take to Establish Employment?

There was only one case by the 3^rd Dept. Appellate Division today regarding workers’ compensation.

• Here is another bad case on what evidence it takes to establish employment. Claimant, a carpenter assistant, claimed that he fell from a ladder at a worksite while installing sheetrock. Claimant alleged the employer was a company named Level 5 Carpentry. His C3 claim form identified a supervisor and the nickname of a co-worker who witnessed the accident. The carrier controverted the claim based on one primary defense: the claimant was not an employee. The claimant and the carrier both produced medical reports. The decision discusses the Board’s wide discretion to judge a witness’s credibility. Here, the entirety of the evidence referenced by the 3^rd Dept. regarding employment was that the “claimant testified to how he was hired, and he identified a supervisor – also identified by the carrier’s witness – who paid him for his work with Level 5.” There was no reference to production of pay stubs, cashed checks, W2s or 1099s, or any other evidence that would identify who the employer was. From this case it is apparent that all the claimant needs to do is say he worked for a company and identify a supervisor. As a practice tip, if there is a witness and supervisor identified in a C3 claim, we need to find those witnesses, interview them, raise their names in our Pre-Hearing Conference statement, and produce them at trial.