NY Court Affirms Apportionment of Liability Between Special and General Employers
A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that apportioned liability for the benefits due under an injured employee’s workers’ compensation claim between the staffing agency that supplied the worker and a furniture store in spite of the fact that the staffing agreement between the two firms indicated it was the staffing agency’s responsibility to provide workers’ compensation coverage [Abad v. Vanety’s Serv., 2022 N.Y. App. Div. LEXIS 2483 (3d Dept., Apr. 21, 2022). Citing earlier appellate decisions, the Court said that, depending upon the circumstances, the Board was empowered in such a case to place liability on the staffing agency, the furniture store, or both [see Larson’s Workers’ Compensation Law, § 68.03].
Background
ACME Furniture Store needed a warehouse attendant and contacted Vanety’s Service, LLC, a staffing agency, which sent claimant to ACME to fill that position. While working at ACME, claimant sustained injuries in a fall from a ladder. He filed a claim for workers’ compensation benefits and both Vanety and ACME were placed on notice. Following a hearing, the WCLJ established the claim for injuries to claimant’s right ankle and both knees, found Vanety to be claimant’s employer, and found Vanety to be 100 percent liable for claimant’s benefits award.
The Board modified the WCLJ’s decision, concluding that claimant was the general employee of Vanety and the special employee of ACME. It apportioned liability for claimant’s benefits award equally between both Vanety and ACME. ACME and its carrier appealed.
Third Department Affirms
The Appellate Division, Third Department affirmed. It noted that ACME had not challenged the finding that a general/special employment relationship existed. The court also noted that the Board found that ACME set claimant’s work schedule, controlled his work activities, could terminate claimant’s position for unsatisfactory performance and was to be notified in the event claimant was absent from work. Vanety, on the other hand, was responsible for paying claimant’s wages and there was an agreement that Vanety would supply workers’ compensation coverage for those workers that it sent to ACME.
The court added that the Board based its apportionment decision on the fact that Vanety issued claimant’s paychecks and provided workers’ compensation insurance coverage and ACME directed and controlled claimant’s work at the location where the accident occurred. Citing Matter of Cook v. Buffalo General Hosp., 308 NY 480 (1955) and Matter of Mitchell v. Eaton’s Trucking Serv., Inc., 165 AD3d 1360 (2018), the court stressed that in New York, the Board was empowered to make an award against either or both of the employers as it saw fit.