CP# 2009-19873 and 2009-15821 (2010). Petro Tsybulskyy, Petitioner vs. Tsybulskyy Construction LLC ASAP Carpentry, Respondents.

• Court: New Jersey

New Jersey Worker's Compensation 2010. CP# 2009-19873 and 2009-15821 (2010). Petro Tsybulskyy, Petitioner vs. Tsybulskyy Construction LLC ASAP Carpentry, Respondents CP# 2009-19873 Tsybulskyy vs. Tsybulskyy's Construction LLC and CP# 2000-915821 Tsybulskyy vs. ASAP Carpentry STATE OF NEW JERSEY NEW JERSEY DEPARTMENT OF LABOR and WORKFORCE DEVELOPMENT DIVISION OF WORKERS' COMPENSATIONC.P. #'s 2009-19873 and 2009-15821 Petro Tsybulskyy, Petitioner vs.Tsybulskyy Construction LLC ASAP Carpentry,RespondentsDECISIONBEFORE: Honorable Virginia M. Dietrich,A.S.J.W.C This is my decision in the matter of Tsybulskyy vs. Tsybulskyy's Construction LLC , claim petition number 2009 - 19873 and in the matter of Tsybulskyy vs. ASAP Carpentry, claim petition number 2009 - 15821. The petitioner, Petro Tsybulskyy alleges in these petitions that he was an employee of Tsybulskyy Construction LLC and a subcontractor for ASAP carpentry. The petitioner was at a worksite on May 28, 2009 when he fell from scaffolding. He was severely injured sustaining injuries to his face, airway, both hands, both wrists, ribs and right leg. The petitioner filed claim petitions against both respondents referenced above. Shortly thereafter, the petitioner filed a motion for medical and temporary disability benefits against both respondents. The respondent carrier for Tsybulskyy Construction LLC, Americans Zurich insurance company, denied the accident and put the petitioner to his proofs. The answer to the motion from the carrier for Tsybulskyy Construction LLC alleged that the petitioner had declined personal (proprietor's) coverage when he had applied for workers compensation insurance. The carrier for ASAP carpentry, Continental Indemnity Company alleged in its answer that the petitioner had not been in its employ on the date alleged in the petition and that the accident had not arisen out of and in the course of employment for ASAP carpentry. In its answer to the motion for temporary and medical benefits, Continental Indemnity Company alleged again that petitioner was not in its employ and that petitioner was an independent contractor. The two issues before the court are first did the petitioner elect proprietor's coverage at the inception of the policy with American Zurich Insurance company and therefore be entitled to coverage and benefits and secondly if there is to be no coverage afforded by American Zurich for the petitioner, is the petitioner eligible to be covered as an employee of an uninsured subcontractor by the general contractor on the worksite and therefore entitled to medical and temporary benefits. The parties agreed to try the issue of coverage before addressing the petitioner's need for treatment or temporary disability benefits. The petitioner testified through a Russian interpreter. The petitioner testified that he was owner of Tsybulskyy Construction LLC and that he had been in business in New Jersey for several years. He testified that his son Viktor assisted him with the incorporation documents. He also testified that he was not involved in any conversations or meetings with any insurance brokers or insurance companies. It was his testimony that when the bills came he would pay them. His son Viktor was not an employee of Tsybulskyy construction. He did not receive any financial remuneration for his assistance with the paperwork. Mr. Tsybulskyy had another son Yuri who was an employee of the company. Yuri Tsybulskyy was at the worksite on the day that Mr. Petro Tsybulskyy was injured. Petra Tsybulskyy and Yuri Tsybulskyy worked as siders at various residential construction sites. In Mr. Tsybulskyy estimation, he had worked on four or five houses for ASAP Carpentry Inc. It was his testimony that when needed, ASAP Carpentry would call Mr. Tsybulskyy and request that he go to particular job site. It was his testimony that because his English was nonexistent, the information from ASAP was given to his son Yuri. There was no contract or any written understanding between Tsybulskyy Construction Company and ASAP Carpentry. The accident happened at a worksite in Metuchen, New Jersey. Before commencing work, someone at ASAP carpentry asked Mr. Tsybulskyy for proof of insurance. He obtained a certificate of insurance and provided it to ASAP Carpentry. Mr. Tsybulskyy testified that without furnishing proof of insurance he would not get the job. Mr. Tsybulskyy testified that he was not familiar with and did not know the broker Joseph Schipsi. It was his testimony that he had never spoken with Mr. Schipsi. The only person who negotiated insurance in behalf of Mr. Petro Tsybulskyy was his son Viktor Tsybulskyy. On cross-examination, Mr. Tsybulskyy again reiterated that he spoke no English other than thank you, goodbye or hello. He testified that he was trained in doing siding, windows and doors. He also admitted that he did work for other companies other than ASAP carpentry...