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Carrier’s Waiver of Lien on Third-Party Settlement Is Not “Compensation” Upon Which an Award of Attorneys Fees Can Be Based

The Third Department determined the negotiation of a waiver of the carrier’s lien on a third-party settlement was not “compensation” upon which an award of attorneys fees can be based:

Pursuant to Workers’ Compensation Law § 24, counsel fees approved by the Board “shall become a lien upon the compensation awarded” and compensation is defined as “the money allowance payable to an employee or to his [or her] dependents as provided for in this chapter” (Workers’ Compensation Law § 2 [6]). Claimant contends that the carrier’s waiver of its lien against the third-party settlement is equivalent to a payment of compensation and counsel fees based upon services provided in securing the waiver should be approved. While “the term ‘compensation’ should be liberally construed to advance the interest of injured employees” …, we find no abuse of the Board’s discretion in its finding that a waiver by a workers’ compensation carrier of a lien against a third-party recovery is not compensation within the meaning of the Workers’ Compensation Law … . Although claimant does benefit from the waiver of the lien, the benefit derived relates to the third-party proceeds and not to compensation awarded him under the Workers’ Compensation Law. Accordingly, the Board’s refusal to award counsel fees will not be disturbed. Matter of Pickering v Car Win Constr., Inc., 2015 NY Slip Op 08484, 3rd Dept 11-19-15

 

Copy Writer and Editor Was an Employee

The Third Department determined claimant copy writer and editor was an employee of Fox Mobile Distribution and was therefore entitled to unemployment insurance benefits:

Here, the record contains substantial evidence that Fox exercised the requisite control over claimant’s work product to establish her status as its employee. Claimant was paid at a set hourly wage, entitled to reimbursement for approved travel and expenses and provided a cellular phone to test Fox’s products … . The project team leaders — who were employees — educated her regarding the product, delegated specific writing or editing tasks, provided direction and set completion deadlines. Claimant regularly reviewed her work progress with the project manager, received ongoing feedback and made necessary revisions and adjustments … . She was also required to come to Fox’s office for meetings and reviews of her copy. The fact that the parties’ agreement designated claimant as a contractor is not dispositive … . Matter of Eckert (Fox Mobile Distrib. LLC–Commissioner of Labor), 2015 NY Slip Op 08489, 3rd Dept 11-19-15

 

Massage Therapist Was Employee

The Third Department determined claimant massage therapist was an employee of Addison Street Spa and was therefore entitled to unemployment insurance benefits:

Here, there is evidence in the record that Addison set the prices for the massages and the percentage of which claimant was paid, scheduled its clients pursuant to claimant’s weekly schedule, collected the fees from the clients and fielded any complaints. Addison required claimant to sign an agreement that she would not solicit, divert or take away any of Addison’s clients during the term of the agreement and for one year after claimant stopped providing massages at the spa. Addison provided the room, equipment and supplies and required claimant to arrive 30 minutes before the scheduled massage time and to maintain professional attire… . Matter of Fatone (Addison St. Spa, LLC–Commissioner of Labor), 2015 NY Slip Op 08488, 3rd Dept 11-19-15

 

Musician Was Employee

The Third Department determined claimant, a musician who accompanied the Young People’s Chorus of New York (YPCNY) was an employee of YPCNY and therefore was entitled to unemployment benefits:

Here, YPCNY provided claimant with the date, time and place for the concerts, the rehearsal times and the music to be performed. Claimant was paid a set rate of between $250 and $600 per concert and YPCNY paid his travel expenses. YPCNY would inform claimant of the required dress code for the concerts and claimant was required to inform YPCNY if he was going to be late or absent. YPCNY’s president was the musical conductor at the concerts and was responsible for handling complaints about the musicians. While there is other evidence in the record that would support a different result, the foregoing constitutes substantial evidence supporting the Board’s decision that YPCNY exercised sufficient control over the services provided by the musicians to establish an employment relationship … . Matter of North (Young People’s Chorus of N.Y.–Commissioner of Labor), 2015 NY Slip Op 08486, 3rd Dept 11-19-15

 

Pyrotechnician Was Not an Employee

The Third Department determined a pyrotechnician who worked for a company (PEI) which puts on fireworks displays was not an employee and was not, therefore, entitled to unemployment insurance benefits:

Here, claimant did not submit a resume or employment application and did not undergo a job interview, but was retained by PEI through his contact with a lead technician and worked on PEI’s displays intermittently over a five-year period. PEI relied on lead technicians, who were independent contractors, to oversee the production of the fireworks displays and they directed and supervised the pyrotechnicians involved in a particular project. Claimant’s duties as a pyrotechnician included picking up the fireworks supplies, setting up the displays, igniting the fireworks, breaking down the displays and cleaning up. PEI did not attend the fireworks displays, but limited its activities to securing the sponsors, designing the shows and providing the fireworks and other necessary equipment. The lead technicians negotiated the price for production services with PEI and submitted invoices instructing PEI how much to pay the pyrotechnicans involved. PEI solicited assignments one at a time and the lead technicians and pyrotechnicians were free to refuse assignments and work for competitors. Although PEI offered to provide training, it was training that was required by regulatory agencies and could be obtained elsewhere. Furthermore, the lead technicians and pyrotechnicans did not wear clothing or other attire identifying them with PEI, but instead wore T-shirts designating them as “staff” that were required by law. Under the circumstances presented, the indicia of control necessary to establish the existence of an employment relationship between PEI and the pyrotechnicans, like claimant, is clearly lacking .. . .  Matter of Franco (Pyro Eng’g Inc.–Commissioner of Labor), 2015 NY Slip Op 08483, 3rd Dept 11-19-15

 

Reporter Was Employee

The Third Department determined claimant, a reporter who worked for a company which produces news reports and shows for television (Everest), was an employee entitled to unemployment insurance benefits:

The record establishes that claimant routinely worked Tuesday through Thursday each week. On these days, Everest would inform claimant in the morning of what her reporting assignment was for that day and whether any story idea she suggested had been approved by Everest. If she refused to perform any of the approved story ideas, she would not work or be paid on that day. Claimant was then required to submit her finished report by a specific time … . Everest provided claimant with support staff to assist in her work, including a videographer, and provided her with camera equipment, access to its electronic news database and graphics and background videos, and a computer for editing purposes … . Everett also reviewed and edited claimant’s work product and could direct her to make revisions or to add graphics to her video reports … . Claimant was also free to use her own video camera operator, but Everest reimbursed claimant for that cost … and retained ownership of claimant’s stories and reports. Although there was also evidence in the record that could have supported a contrary conclusion, the foregoing amply furnished indicia of control over claimant’s activities sufficient to support the Board’s conclusion of an employer-employee relationship… . Matter of Redwoodturral (Everest Prod. Corp.–Commissioner of Labor, 2015 NY Slip Op 08482, 3rd Dept 11-19-15

 

Truck Driver Was Employee

The Third Department determined claimant truck driver was an employee of RB Humphreys and was therefore entitled to unemployment insurance benefits:

Here, claimant entered a lease purchase agreement for use of a truck owned by RB Humphreys. RB Humphreys retained exclusive use of the vehicle while under lease and did not relinquish the title until the full purchase price was paid. RB Humphreys set the pay rate for claimant, who, absent negligence on his part, was paid regardless of whether the customer ultimately paid RB Humphreys. Although claimant could refuse assignments, testimony established that his lease purchase agreement would be terminated if an assignment was not accepted within a certain period of time. Furthermore, pursuant to the service contract with RB Humphreys, claimant was subject to a one-year noncompete clause following the cessation of their relationship. Matter of Wilder (RB Humphreys Inc.–Commissioner of Labor), 2015 NY Slip Op 08487, 3rd Dept 11-19-15

 

Employer Was Not Prejudiced by Claimant’s Failure to Give Timely Notice of the Accident, Claim Allowed

The Third Department determined the claimant’s failure to provide timely notice of the accident did not bar his claim:

Failure to provide timely written notice of an accident to an employer pursuant to Workers’ Compensation Law § 18 generally bars the claim “unless the Board excuses that failure on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced” … . Here, although claimant did not provide written notice of the January 2, 2012 accident to the employer, he filed his claim for benefits based upon that accident with the Workers’ Compensation Board on January 31, 2012. On February 6, 2012, the Board provided its Notice of Case Assembly to the employer, which informed the employer of the claim, the date of the accident and that claimant was alleging injuries to his head, neck and back. Notably, the record reflects that claimant received prompt medical attention, including MRIs of his lumbar and cervical spine in February 2012. Under these circumstances, substantial evidence supports the decision of the Board that the short delay between the expiration of the 30-day notice period and the employer receiving notice of the claim did not prejudice the employer so as to prevent it from properly investigating the claim … . Matter of Lopadchak v R.W. Express LLC, 2015 NY Slip Op 08490, 3rd Dept 11-19-15

 

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Questioning by Police and Caseworker Violated Defendant’s Right to Counsel, Failure to Suppress Statements Was Not Harmless Error

The Third Department reversed defendant’s conviction (for murder of mother, stepfather and stepbrother) because defendant’s “yeah probably” response to the question whether he wanted a lawyer was deemed an unequivocal request for a lawyer. A public defender, who represented defendant in a prior case, had sent a letter to the district attorney indicating he was aware of the murders and that he didn’t want defendant questioned in his absence. The police who questioned defendant did not tell defendant about the letter. The court determined that the letter did not cause the right to counsel to attach because it did not state the public defender was representing defendant on the murders. However, given the interrogating officers’ knowledge of the letter, they should have asked defendant directly whether he wanted the public defender’s representation. In addition, a child protective caseworker’s (MacNeil’s) subsequent questioning of the defendant violated his right to counsel because the caseworker was deemed an agent of the police:

… [T]he People contend that defendant’s statement — namely, “Yeah, probably” — did not unequivocally invoke his right to counsel. We disagree. The word “probably” is defined as “very likely” or “almost certainly” (Merriam—Webster Online Dictionary, http://www.MerriamWebster.com/dictionary/probably). It is difficult to conceive of circumstances where “probably” would mean “no,” particularly here, where the police knew that defendant was currently represented, albeit on unrelated charges, and also knew that counsel was so clearly attempting to protect his current client’s constitutional rights. Defendant’s demeanor and tone when saying “Yeah, probably” was his simple expression, in everyday language, that he was not competent or capable to deal with the officers’ questioning. Thus, based on the particular circumstances herein, a reasonable police officer would have understood that defendant’s statement was a request for counsel, requiring questioning without representation to cease .. . * * *

As it cannot be said that there is no reasonable possibility that the admission of defendant’s statements at trial affected the jury’s verdict, County Court committed reversible error in failing to suppress defendant’s statements to the officers… . * * *

MacNeil acknowledged that she works closely with the police in these types of investigations and that, to the best of her recollection, Hamilton [a police officer who had questioned defendant] was present in the room as she was speaking with defendant. Based on the foregoing, we find that MacNeil was acting as an agent of law enforcement and, therefore, her questioning also infringed upon defendant’s right to counsel. Thus, as the product of interrogation by a public servant engaged in law enforcement activity, defendant’s statements to MacNeil were involuntary and should have been suppressed … . People v Slocum, 2015 NY Slip Op 08203, 3rd Dept 11-12-15

 

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Reversible Error to Admit Hearsay Statements Made by the Victim Four Years After the Alleged Incident Under the “Prompt Outcry” Exception to the Hearsay Rule

The Third Department ordered a new trial in a sexual assault case because hearsay testimony about what the victim said four years after the alleged assault was admitted under the “prompt outcry” exception to the hearsay rule (without any substantive explanation for the delay):

Whether a complaint is sufficiently prompt so as to fall within the exception is not a matter of precision and depends upon the facts of a given case … . That being said, “courts traditionally have required the complaint to be made ‘at the first suitable opportunity'” …, and “[a]ny significant delay must be adequately explained” … . Here, the victim did not disclose the abuse until 2011, four years after she and her sister were placed in the custody of her father and the abuse had ended. The victim testified that she waited so long to disclose the abuse because defendant had threatened to kill her if she told anyone, but that threat was made during a supervised visit between the victim and defendant. The visitation had ceased well before the disclosures were made, and the victim had neither seen nor spoken to defendant since 2009. We are left, in other words, with disclosures that were made four years after the abuse ended and over two years after the victim last interacted with defendant … .

The People suggest that this prolonged delay can be attributed to the facts that the victim had sustained psychological trauma and suffered from a mild neurological impairment. Research indeed “suggest[s] that withholding a complaint may not be unusual,” but that fact is not dispositive in assessing whether a complaint was made promptly … . To hold otherwise would run against the very purpose of the exception, namely, to address “the tendency of some jurors to doubt the victim in the absence of” a prompt complaint of abuse … . As for the victim’s neurological condition, it suffices to say that no proof in the record suggests that it would have compelled her to remain silent for such a long period of time. Thus, given the absence of any adequate explanation for the victim’s prolonged delay in disclosing the abuse, her disclosures cannot be described as prompt outcries, and the hearsay testimony regarding them should not have been admitted into evidence … . Inasmuch as the evidence of guilt in this case was not overwhelming — indeed, the verdict hinged on the question of whether the victim was credible — we cannot say that the erroneous admission of this bolstering hearsay was harmless … . People v Stone, 2015 NY Slip Op 08205, 3rd Dept 11-12-15

 

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