Claim of Sanders v. Samsol Homes, Inc.

— Kane, J. P.

Appeal from a decision of the Workers’ Compensation Board, filed October 19, 1984.

Claimant was injured in a fall from a scaffold at a construction site where residence dwellings were being erected by Samsol Homes, Inc. (Samsol). The Workers’ Compensation Board has determined that an employer-employee relationship existed between Samsol and claimant. Claimant appeals, contending that he was actually employed by Andy Johnson and James Davis, two individuals who recruited him to work at the Samsol site.

The record demonstrates that claimant, along with Johnson and Davis, was one of six unskilled day laborers recruited by Samsol to carry and install necessary steel framing for the balconies at Samsol’s building sites. This work required approximately three or four hours to complete and, on each occasion their services were required, Samsol paid $300 in cash or by check to Johnson or Davis, who then divided the proceeds equally among the six workers. In the days that assistance was required, Johnson and/or Davis, at Samsol’s request, would round up the other four to carry out the day’s assignment. A representative of Samsol inspected each job to insure the progress of the work, or to start and stop work, if he deemed it necessary. Davis, in his testimony, described these activities as "supervising”. Samsol provided necessary materials and tools used on the job, as well as the scaffolding from which claimant fell. We are compelled to conclude that there is substantial evidence to support the determination of the Board on an issue of fact exclusively within its province (see, Matter of Abramson v Long Beach Mem. Hosp., 103 AD2d 866).

Decision affirmed, without costs. Kane, J. P., Yesawich, Jr., and Levine, JJ., concur.