Opinion
May 7, 1992
Appeal from the Workers' Compensation Board.
At issue in this case is whether claimant, a shareholder and participating limousine driver in XYZ Two Way Radio Service, Inc., a corporation providing solicitation and dispatch services, is an employee of the corporation and thus eligible for workers' compensation benefits. Participation in the dispatch service evidently requires that the participating driver purchase a certain number of shares in the corporation. The participant must own a limousine and is required independently to pay for insurance, gas, oil and maintenance. All participants have or are supplied with two-way radios in their limousines which are connected to the corporation's central dispatch. While participants have no set hours, if they wish to work they call in and place themselves on a "list".
The corporation takes calls from customers who seek limousine transportation and its dispatcher evidently assigns the participating drivers to the fare in the order in which they placed themselves on the list. Whether participants must accept an assigned fare depends on whether the fare is a cash fare or a voucher fare. If the fare is a cash fare (i.e., the passenger pays the participant directly upon arrival at the desired location) it may be refused; if, however, the fare is a voucher fare (i.e., the passenger simply signs a voucher at the completion of the trip which the participant returns to the corporation and receives a set percentage payment) the participant must accept the fare or face a monetary penalty. The corporation also reimburses participating drivers for tolls and related expenses. Claimant indicated that he does not provide limousine service to anyone other than the corporation's customers and suggested that if he does, he is subject to a penalty. At the conclusion of the evidence, the Workers' Compensation Law Judge found no employer-employee relationship. Upon administrative appeal, the Workers' Compensation Board reversed. The corporation appeals.
We affirm. The sui generis inquiry of whether an employer-employee relationship exists in a given situation presents a factual issue within the province of the Board, and its determination must be upheld if supported by substantial evidence (see, e.g., Matter of Valverde v. New York City Dept. of Hous. Preservation Dev., 154 A.D.2d 756, appeal dismissed 77 N.Y.2d 833; Matter of Daughtrey v. Enertex Computer Concepts, 149 A.D.2d 872). Chief among the factors to be considered in making this determination are the purported employer's right to control the work, the method of payment, which party furnishes the equipment necessary to do the work, the right to discharge and the relative nature of the work (see, e.g., Matter of Schaff v Maunz Co., 144 A.D.2d 109; Matter of Richter v. Buffalo Air Park, 125 A.D.2d 809). Here, the Board concluded that the corporation's complete control over the solicitation and scheduling of voucher fares, the mandatory nature of voucher fare assignments, its exclusive authority over the handling and processing of the voucher payment system accompanied by the fact that claimant does not accept fares other than those referred by the corporation, tipped the scale in favor of finding an employer-employee relationship. In our view, these incidents of control are sufficient to support the Board's conclusion (see, Matter of Ziegler v. Fillmore Car Serv., 83 A.D.2d 692, lv denied 54 N.Y.2d 609; Matter of Wittenstein v Fugazy Cont. Corp., 59 A.D.2d 249, lv denied 43 N.Y.2d 648; cf., Matter of Pavan [UTOG 2-Way Radio Assn. — Hartnett], 173 A.D.2d 1036, lv denied 78 N.Y.2d 857; Livery Owners Coalition v. State Ins. Fund, 152 Misc.2d 905).
We have examined the remaining issues propounded by the corporation and find them to be unpreserved for review.
Mercure, J.P., Crew III, Casey and Harvey, JJ., concur. Ordered that the decision is affirmed, without costs.