This is the video from our November 19, 2018 live webinar presented by attorneys John Marzolla and Tim Kane. The experienced workers’ compensation defense attorneys discuss their approaches to evaluating New York workers’ compensation claims for exposure.
A frequent issue that arises in New Jersey workers’ compensation cases is whether or not the petitioner is an employee or an independent contractor. In a recent case, decided October 26, 2018, The appeals panel in New Jersey answered this question in a case involving a cab dispatching service. After trial, the Workers’ Compensation Law Judge dismissed the claims of Julio Pendola against Milenio Express finding that Pendola was not Milenio’s employee despite the fact that the alleged employer had never paid the alleged employee. On appeal the Appellate Division reversed. Here’s why.
Facts From the Trial
The trial judge found that Pendola, a cab driver, was not employed by Milenio because:
Pendola supplied his own car.
Pendola supplied his own equipment, like the two way radio used to dispatch him.
Pendola owned the “medallion” on the cab (the license to operate as a taxi);
Pendola paid for his own gas, maintenance, and insurance on his car.
The Petitioner was not paid by the company and in fact paid the company $150 per week for the dispatched fares.
the Claimant testified that he never shared or remitted any portion of fares to the company; he kept 100% of all fares.
Against all of that, Pendola argued that he was an employee for the following reasons:
Pendola testified that he had provided driving services exclusively to Milenio since 2003.
Before he purchased his car, a Ford Crown Victoria, he consulted with Milenio who required he paint the car silver, affix the taxi company logo to it, along with the Company’s phone number.
The company provided Pendola with business cards, receipts, and vouchers.
Pendola also claimed he only picked up passengers from location when dispatched by the company.
Pendola testified that the company required his to be well dressed, keep his car clean, and promptly pick up fares. The company punished drivers who failed to follow those basic requirements by not sending them dispatches for a few hours or the rest of the day.
On October 25, 2018 the Board announced that the virtual hearing pilot program was permanent across New York. Lois Attorneys John Marzolla, Christian Sison, and Declan Gourley present a roundtable discussion on what this means for employers and carriers.