Practice point: Primary jurisdiction as to the applicability of the statute is vested in the Workers' Compensation Board., and where the availability of workers' compensation hinges on the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum to resolve the questions. Plaintiff has no choice but to litigate this issue before the Board, and the question of whether a person is an employee within the meaning of the statute is for the Board to determine in the first instance. The Board's findings are final and conclusive unless reversed on direct appeal, and are not subject to collateral attack in a plenary action. This is so even where, as here, the employer has filed a claim on the employee's behalf and the employee did not apply for or accept benefits. Whether the employee or the employer first brings the injury to the Board's attention, the Board's finding that the injury is compensable is, until set aside, a final and conclusive determination which bars an action at law.
Case: Aprile-Sci v. St. Raymond of Penyafort R.C. Church, NY Slip Op 04412 (2d Dep't June 7, 2017)
Here is the decision.
Monday's issue: Respondeat superior.
