LOIS Associate Andrew Berman and Paralegal Andrea Hayles secures victory over Section 56 in a New York Workers’ Compensation case for the employer. The claim involves a supermarket that hired an outside fence maintenance company whose employee was injured while performing repairs on the premises. Because the fence company lacked proper insurance, Section 56 liability was asserted against the supermarket. Although the basic facts were undisputed, the Law Judge indicated an inclination to impose Section 56 liability absent strong countervailing authority and directed that a memorandum of law be submitted.
Attorney Berman drafted and submitted a detailed memorandum arguing that Section 56 was inapplicable because the relationship did not resemble a true contractor-subcontractor arrangement, and the external fence repair performed was not part of the supermarket’s normal operations. The memorandum further argued that Section 56 is intended to address hazardous employment deliberately subcontracted to avoid insurance obligations, a circumstance that is absent here. Fence maintenance, while involving an injury in this instance, does not rise to the level of inherently hazardous employment contemplated by the statute. The Law Judge upheld the position of Attorney Berman, finding the claimant failed to establish employer-employee relationship. As a result of this favorable outcome, there is now a strong argument in reserve should a similar fact pattern reappear.
