IN RE: the Claim of Keith M. FISHER

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Keith M. FISHER, Respondent, v. SDAM MANAGEMENT INC. et al., Appellants, Uninsured Employers' Fund, Respondent. Workers' Compensation Board, Respondent.

Decided: June 28, 2001

Before:  CARDONA, P.J., SPAIN, CARPINELLO, MUGGLIN and ROSE, JJ. James P. O'Connor, State Insurance Fund (Edward Obertubbesing of counsel), New York City, for SDAM Management Inc. and another, appellants. Joseph J. Mastroianni Jr., Uninsured Employers Fund, Albany, for Uninsured Employers' Fund, respondent. Eliot Spitzer, Attorney-General (Claire T. O'Keefe of counsel), New York City, for Workers' Compensation Board, respondent.

Appeals from a decision and an amended decision of the Workers' Compensation Board, filed March 2, 2000 and November 3, 2000, which ruled that an employer-employee relationship existed between claimant and SDAM Management Inc.

Claimant sustained injuries as a result of an automobile accident while employed as a taxicab driver and subsequently filed a claim for benefits.   SDAM Management Inc. controverted the claim contending, inter alia, that there was not an employee-employer relationship between it and claimant.   At a hearing before a Workers' Compensation Law Judge (hereinafter WCLJ), claimant testified that he drove the taxi for Middletown Taxi and that when the cabs needed to be fixed, he brought them to John Lewis, who the record reveals to be a principal of SDAM.   Although the WCLJ subpoenaed Lewis, he did not appear.   The WCLJ ultimately concluded, inter alia, that an employer-employee relationship existed between claimant and Lewis and several of Lewis' business entities, including SDAM.   The Board thereafter upheld the WCLJ's decision, and SDAM and its workers' compensation carrier appeal.   We determine that the Board's decision is supported by substantial evidence and affirm.

 “The issue of whether an employer-employee relationship exists is a factual one for the Board to resolve and, if supported by substantial evidence, its decision must be upheld” (Matter of Jhoda v. Mauser Serv., 279 A.D.2d 853, 854, 719 N.Y.S.2d 388, 389;  see, Matter of Blair v. Bailey, 279 A.D.2d 941, 719 N.Y.S.2d 757).   In workers' compensation claims involving radio-dispatched car services, the issue whether such relationship exits depends on the control exercised by the particular service over its drivers (see, Matter of Jhoda v. Mauser Serv., supra, at 389).   The record establishes that SDAM's principal, Lewis, applied for the taxicab license for the vehicle that claimant was driving at the time of his accident.   SDAM apparently also did business as Middletown Taxi, the entity that provided claimant with a cab and dispatched him to pick up his fares.   In light of this evidence and Lewis' failure to appear and offer any evidence on this matter, we find no reason to disturb the Board's finding that an employer-employee relationship existed between SDAM and claimant.

ORDERED that the decision and amended decision are affirmed, without costs.



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