Employment questions exist over injured worker who sued: N.Y. high court

Appellate Division of the Supreme Court of the State of New York on Thursday reversed a ruling that said a worker who fell 40 feet at a construction site was an employee subject to exclusive remedy and thus couldn’t sue the firm overseeing the project.

As documented in Matter of Trickey v. Black Riv. Plumbing, Heating & A.C., Inc., the claimant in 2020 was installing roof trusses on a pole barn being constructed on property owned by Black River Plumbing, Heating & Air Conditioning, when the trusses collapsed, causing him to fall 40 feet to the ground and sustain extensive orthopedic and internal injuries.

The worker then sued Black River for his injuries. Black River’s workers compensation insurer filed a request with the Workers’ Compensation Board to establish a claim for the accident, and sought a ruling that claimant was an employee of Black River at the time of the accident, thereby making workers compensation benefits the exclusive remedy for his injuries.

The worker, maintaining that he was an independent contractor, filed paperwork with the board asserting that he was not an employee of Black River and did not wish to pursue a workers compensation claim.

A Workers’ Compensation Law Judge, based upon the presumption of employment in the Construction Industry Fair Play Act, which determines employment status of construction workers by presumption, found that the claimant was an employee of Black River. The Workers’ Compensation Board adopted those findings.

In remanding the case, the appeals court said the board “did not specifically resolve the conflicting testimony as to who actually controlled and/or directed the installation of the roof trusses,” a central issue on whether the construction work presumption can be rebutted.