October 03, 2018

Determining the employer of a workers' compensation benefit claimant is critical to determining if a respondent may be sued by the claimant


Determining the employer of a workers' compensation benefit claimant is critical to determining if a  respondent may be sued by the claimant
Dube v County of Rockland, 2018 NY Slip Op 02597, Appellate Division, Second Department

New York State's Workers' Compensation Law provides that:

1. An employee who is entitled to receive workers' compensation benefits may not sue his or her general employer or special employer for injuries occurring during the course of employment.

2. A special employee is "one who is transferred for a limited time of whatever duration to the service of another" and a determination as to whether a special employment relationship exists is generally an issue of fact requiring consideration of many factors, including:

            [a] who controls and directs the manner of the employee's work,
           
            [b] who is responsible for payment of wages and benefits,

            [c] who furnishes equipment,

            [d] who has the right to discharge the employee, and

            [e] whether the work being performed was in furtherance of the special employer's or the general employer's business.

3. General employment is presumed to continue, and that presumption can only be rebutted by a "clear demonstration of [the] surrender of control by the general employer and assumption of control by the special employer."

The workers' compensation claimant in this action, Richard Dube, a police officer employed by the Town of Ramapo, was selected as a candidate for the Rockland Regional Rescue, Entry and Counter-Terrorism Team [REACT], a part-time SWAT team comprised of specially trained police officers from participating law enforcement agencies in Rockland County.

During a physical fitness test in connection with his candidacy for REACT, Dube suffered heat stroke and sustained personal injuries. Dube and his wife, suing derivatively, [Plaintiffs] commenced an action against the County, the Rockland County Sheriff's Department, and REACT [County Defendants]. Subsequently the action was consolidated with an action commenced by Plaintiffs against USPLabs, LLC.

County Defendants moved for summary judgment dismissing Plaintiff's complaint asserted against them, contending that Dube was their special employee and therefore barred from commencing an action against them. The County Defendants also contended that they were entitled to summary judgment dismissing the complaint based upon governmental immunity, the "firefighter's rule," and the doctrine of primary assumption of risk.

The Supreme Court granted the County Defendant's motion, determining that Dube was a special employee of the County Defendants, but did not address addressing the other grounds claimed by the County Defendants in support of its motion for summary judgment. The Plaintiffs appealed the Supreme Court's decision.

The Appellate Division reversed the lower court ruling, explaining that the County Defendants "failed to meet their initial burden of submitting sufficient evidence demonstrating the absence of any triable issues of fact" in that the County Defendants failed to submit sufficient evidence to rebut the presumption that Dube remained a general employee under the control of the Town at the time of the incident.

The Appellate Division pointed out that Dube was under the control of the County Defendants for the limited purpose of the physical test to evaluate his ability to join REACT. In contrast, Dube's general employer, the Town of Ramapo, paid his wages, gave him permission to attend the REACT test on his regular work day, paid his workers' compensation benefits premiums, and retained the authority to discharge or discipline him.

Addressing the County Defendants claim of "governmental immunity," the Appellate Division said the County Defendants "failed to establish, prima facie, that there was a set procedure for administering the physical test and that they did not violate accepted practices.

Further, said the court, the County Defendants reliance on the "firefighter's rule" is misplaced in light of the court's determination that the County Defendants  failed to establish, prima facie, that Dube was their special employee.

Finally, the Appellate Division noted that as the County Defendants "failed to establish, prima facie, that the doctrine of primary assumption of risk is applicable under the circumstances of this case."

As the County Defendants failed to meet its prima facieburden, Supreme Court was required to deny its motion for summary judgment "regardless of the sufficiency of the [Plaintiffs'] papers submitted in opposition. Accordingly, the Appellate Division reversed the lower court's decision, on the law, and awarded one bill of costs to the Plaintiffs.

The decision is posted on the Internet at:

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