The issue of what must be demonstrated in order to divest a court of subject matter jurisdiction when there is a workers compensation issue present has been the matter of significant debate over the last few years. The appellate decisions in this area of law have been somewhat inconsistent. Most of these appellate decisions, along with my thoughts, may be found on this blog.
But for carriers that write certain segments of the livery business, this case might be significant. I say the word “might” because recourse to the record on appeal is necessary to answer the many questions I have on this issue. Of course, if someone would be nice enough to email me the motion papers in this case, I would be most appreciative.
Dunn v American Tr. Ins. Co., 2010 NY Slip Op 01757 (2d Dept. 2010)
“In this case, the defendant’s motion presented factual questions as to the plaintiff’s “status as either an independent contractor, as he claims he is, or as an employee of” a car service dispatch base, as the defendant claims (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 269). Resolution of these questions “is best suited for determination by the [Workers’ Compensation] Board, given its expertise in the area” (id. at 269). Accordingly, prior to rendering a determination on the motion, the Supreme Court should have referred the matter to the Workers’ Compensation Board for a hearing and determination as to whether the plaintiff is relegated to benefits under the Workers’ Compensation Law.”