                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 22, 2016                   522335
________________________________

In the Matter of SARATOGA
   SKYDIVING ADVENTURES,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   November 21, 2016

Before:   McCarthy, J.P., Lynch, Rose, Clark and Aarons, JJ.

                             __________


      Stockton, Barker & Mead, LLP, Troy (Matthew R. Mead of
counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a decision of the Workers' Compensation Board,
filed March 11, 2015, which denied the application of Saratoga
Skydiving Adventures for redetermination review of a stop-work
order issued pursuant to Workers' Compensation Law § 141-a.

      On August 15, 2014, an investigator with the Workers'
Compensation Board, Kenneth Dippel, made an airport field visit
regarding Saratoga Skydiving Adventures in response to fatalities
following an airplane crash weeks earlier. Dippel spoke to Bob
Rawlins, the owner of Saratoga Skydiving, who indicated that he
did not have workers' compensation insurance because his workers
                               -2-                522335

were all independent contractors.1 Dippel observed Jason Wood,
who acknowledged that he worked as a pilot and tandem jump
instructor for Saratoga Skydiving, helping Rawlins move parts of
the wreckage of an airplane onto a Saratoga Skydiving truck.
Wood indicated that he was not being paid to help move the
wreckage. Based upon this information, a stop-work order was
issued that day against Saratoga Skydiving for failing to secure
workers' compensation coverage (see Workers' Compensation Law
§§ 50, 141-a [4]). Saratoga Skydiving thereafter applied for a
redetermination review of the stop-work order, relying on an
affirmation of its attorney asserting that it had no employees
(see 12 NYCRR 308.5), which was opposed by the Uninsured
Employers' Fund (see Workers' Compensation Law § 26-a [5]).2
After a hearing at which Dippel, Wood and Rawlins testified, a
Workers' Compensation Law Judge denied the application to lift
the stop-work order. Saratoga Skydiving appeals.

      We affirm. The stop-work order was issued against Saratoga
Skydiving pursuant to Workers' Compensation Law § 141-a, which
provides added enforcement authority against employers who fail
to secure proper workers' compensation coverage (see Matter of
Mamoroneck Vil. Tile Distribs., Inc. v Workers' Compensation Bd.,
68 AD3d 1423, 1424 [2009]). Such a failure by an employer is
deemed to be "an immediate serious danger to public health,
safety or welfare sufficient to justify service by the chair of a
stop-work order" (Workers' Compensation Law § 141-a [4] [a]).
Saratoga Skydiving, which conceded that it did not have workers'
compensation insurance for its skydiving business, challenges the
issuance of the stop-work order and the denial of the request to
lift that order, claiming that the evidence did not establish
that it had an employer-employee relationship with its workers.



     1
        Prior to the visit, Dippel had searched the Board's
computer system and was unable to verify workers' compensation
coverage for Saratoga Skydiving.
     2
        Although the redetermination application did not contain
an affidavit as required by 12 NYCRR 308.5 (c), a hearing was
nonetheless ordered per 12 NYCRR 308.5 (f) (2).
                               -3-                522335

      "Whether there exists an employer-employee relationship in
a particular case is a factual issue for the Board to resolve and
its determination will be upheld when supported by substantial
evidence" (Matter of Malave v Beef & Bourbon, LLC, 114 AD3d 1006,
1007 [2014] [citations omitted]). "In making such a
determination, factors to be considered include control over the
. . . work, method of payment, right to discharge, furnishing of
equipment and relative nature of the work" (Matter of Schwenger v
NYU Sch. of Medicine, 126 AD3d 1056, 1058 [2015] [internal
quotation marks and citations omitted], lv dismissed 26 NY3d 962
[2015]).

      Dippel testified that he observed Wood, an acknowledged
pilot and jump instructor for Saratoga Skydiving, assisting
Rawlins in loading plane wreckage onto a truck and Wood admitted
that he was doing this work on behalf of Saratoga Skydiving,
albeit without pay.3 After conferring with his supervisor,
Dippel issued the stop-work order. Operation of an aircraft is
defined as "hazardous employment" (Workers' Compensation Law § 3
[1] [group 7]). At that preliminary stage, as Dippel possessed
sufficient information to believe that Saratoga Skydiving had not
secured workers' compensation coverage for its pilots or tandem
jumpers who provide the services essential to its business, we
find that the issuance of the stop-work order was authorized (see
Workers' Compensation Law § 141-a [4] [a]).

      We further find that substantial evidence supports the
redetermination decision, following a hearing, upholding the
stop-work order. Rawlins testified that Duanesburg Skydiving
Club, Inc. owns and does business as Saratoga Skydiving; Rawlins
is the sole shareholder and officer of Duanesburg Skydiving
Club.4 Saratoga Skydiving, which is in the business of providing


     3
        Wood later testified that he was present at the airport
to complete paperwork for Rawlins to file that would permit him
to pilot a plane carrying a banner and helped Rawlins with the
wreckage.
     4
        Duanesburg Skydiving Club similarly does not carry
workers' compensation coverage.
                              -4-                522335

flights and skydiving services to student clients, engages
licensed commercial pilots and certified tandem jump instructors
to carry out these services. Saratoga Skydiving uses planes
owned by Duanesburg Aircraft, Inc., of which Rawlins is also the
sole shareholder and officer, and Duanesburg Skydiving Club owns
the parachutes. When clients call looking to book a jump,
Rawlins or one of the jump instructors schedules their tandem
jump at a time convenient for the clients; Rawlins then selects a
pilot and a jump instructor from his list and retains them to
perform the needed services if they are available, and they are
permitted to decline work. Saratoga Skydiving has no office
workers or other employees. Rawlins pays the pilots and jump
instructors a set amount for each jump, using Duanesburg
Skydiving Club checks, although sometimes he does not pay the
pilots or continue to engage them if they are not efficient with
their flight time, a judgment that Rawlins alone makes.5 Rawlins
issues tax form 1099 to the pilots and tandem jumpers, most of
whom have other employment, although some of the jump instructors
are incorporated and paid through their own businesses. Wood, a
certified flight instructor and licensed pilot, testified that he
had a business teaching flying lessons until 2009 and is employed
full time as an assembly worker with a local company; he has also
worked part time for Saratoga Skydiving for approximately nine
years and flew planes for one other business during that time.

      Given the foregoing, we find that substantial evidence
supports the decision that Saratoga Skydiving, which is
controlled, owned and operated by Rawlins, is required to
maintain workers' compensation coverage for its pilots and jump
instructors because they are employees. Foremost, considering
the relative nature of their work, the pilots and jump
instructors are indispensable and integral to Saratoga
Skydiving's business of offering skydiving experiences to clients
(see Matter of Schwenger v NYU Sch. of Medicine, 126 AD3d at




    5
        According to Rawlins, pilots who are not paid often
continue to fly for Saratoga Skydiving in order to gain flying
hours necessary for their licensing.
                                 -5-                  522335

1058; Sikes v Chevron Cos., 173 AD2d 810, 812 [1991]).6 Further,
Rawlins supplied all of the equipment, including the planes and
parachutes through companies solely owned and controlled by him
(see Matter of Richter v Buffalo Air Park, 125 AD2d 809, 810
[1986]; Matter of Jennings v Avanti Express, Inc., 91 AD3d 999,
999-1000 [2012]). He also exercised sufficient control over the
work, scheduling and services provided on behalf of Saratoga
Skydiving, selected who to hire for each jump and determined
whether they were sufficiently efficient to be paid or should be
discharged. As the determination is supported by substantial
evidence, it must be affirmed despite the existence of evidence
that could support a contrary conclusion (see Matter of Jennings
v Avanti Express, Inc., 91 AD3d at 999-1000).

         McCarthy, J.P., Rose, Clark and Aarons, JJ., concur.



         ORDERED that the decision is affirmed, without costs.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court




     6
        While the written decision refers only to the pilots as
providing essential services, the oral ruling makes clear that
both the pilots and the jump instructors are employees of
Saratoga Skydiving.
