State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 13, 2014 516780 

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In the Matter of the Claim of

DAVID M. HASBROUCK,

Respondent,

v

MEMORANDUM AND ORDER

CHRISTOPHER M. HARLOFF,

Appellant.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: October 16, 2014

Before: Lahtinen, J.P., Garry, Egan Jr., Lynch and Devine, JJ.

__________

Coughlin & Gerhart, LLP, Binghamton (Oliver N. Blaise III

of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York City (Iris

A. Steel of counsel), for Workers' Compensation Board,

respondent.

__________

Egan Jr., J.

Appeal from a decision of the Workers' Compensation Board,

filed July 25, 2012, which, upon reconsideration, ruled, among

other things, that claimant was an employee of Christopher M.

Harloff.

In November 2008, claimant was injured while splitting

firewood on the property of Christopher M. Harloff and, in

October 2009, he applied for workers' compensation benefits. A

Workers' Compensation Law Judge, in two decisions, found that an
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employer-employee relationship existed between claimant and

Harloff, established the claim, found Harloff in violation of

Workers' Compensation Law § 50 and authorized medical care. Upon

review, a panel of the Workers' Compensation Board reversed,

finding, among other things, that although an employer-employee

relationship existed, the claim was barred due to claimant's

failure to provide timely notice to Harloff pursuant to Workers'

Compensation Law § 18. Claimant appealed and, before the appeal

could be perfected, the full Board rescinded the decision of the

Board panel and referred the case back to the Board panel for

further consideration. Upon reconsideration, the Board panel

found that the statutory notice requirements had been met and

affirmed the Workers' Compensation Law Judge's decisions. 

Harloff now appeals.

We affirm. "Whether an employer-employee relationship

existed presents a factual issue for the Board, and its

determination thereof will not be disturbed if supported by

substantial evidence in the record" (Matter of Duma v Baca, 83

AD3d 1228, 1228 [2011] [citations omitted]; accord Matter of

Pelaez v Silverstone, 93 AD3d 1042, 1042 [2012], lv dismissed and

denied 19 NY3d 954 [2012]). Here, the Board credited the

testimony of claimant and his witness that Harloff hired claimant

in 2007 to work at Harloff's property maintenance business, and

that claimant was working in that capacity when he was injured. 

While the testimony of Harloff and his witnesses sharply

conflicted with that of claimant and his witness, this created a

credibility issue for the Board's resolution (see Matter of

Martineau v Ashline, 114 AD3d 1009, 1010 [2014], lv dismissed and

denied 23 NY3d 943 [2014]; Matter of Brzezinski v Gambino, 100

AD3d 1192, 1192-1193 [2012]). Accordingly, notwithstanding the

evidence in the record to the contrary, substantial evidence

supports the Board's finding that claimant was Harloff's employee

(see Matter of Martineau v Ashline, 114 AD3d at 1010; Matter of

Pelaez v Silverstone, 93 AD3d at 1043). Further, inasmuch as

there is proof in the record that Harloff had actual knowledge of

the injury, the Board did not abuse its discretion in excusing

claimant's failure to provide Harloff with timely notice of his

injury pursuant to Workers' Compensation Law § 18 (see Matter of

Martineau v Ashline, 114 AD3d at 1010; Matter of Conyers v Van

Rensselaer Manor, 80 AD3d 914, 916 [2011]).
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Lahtinen, J.P., Garry, Lynch and Devine, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court