FOR BREAKING NEWS VISIT WWW.QNS.COM SEPTEMBER 20, 2018 • THE QUEENS COURIER 29
Q: I was a police officer employed by the Town, and a candidate for the
County’s part-time SWAT team. During a physical fitness test in connection
with my candidacy, I suffered heat stroke. For the purpose of the test, I was
under the control of the County. However, the Town paid my wages, gave me
permission to attend the team test on my regular work day, paid my workers’
compensation benefits, and retained the authority to discharge or discipline me.
A: As an employee who was entitled to receive workers’ compensation
benefits, you may not sue your employer for injuries occurring during the
course of employment. Seemingly, the Town was your employer, and only the
County may be vulnerable to a lawsuit. However, the County may contend
that, no, it was your ‘special’ employer.
Determining whether a special employment relationship involves a
number of questions. Who controlled and directed the manner of your work?
Who was responsible for payment of wages and benefits? Who furnished the
equipment? Who had the right to discharge you? Was the physical fitness
test in furtherance of the County’s business, or the Town’s?
General employment is presumed to continue, and the presumption
can only be rebutted by a clear demonstration of surrender of control by the
Town and assumption of control by the County. To establish its immunity to
a negligence suit, the County will need to submit sufficient evidence to rebut
the presumption that you remained a general employee under the control of
the Town. Otherwise, the County will need to rebut whatever proof you may
have of its negligence, if any.
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