The Workers' Compensation Board thus has primary jurisdiction over the issue of the availability of coverage (Botwinick v Ogden, 59 N.Y.2d 909, 911 Peckham v Peckham Materials Corp., 102 A.D.2d 884), and a plaintiff has no choice but to litigate this issue before the Board (Cunningham v State of New York, 60 N.Y.2d 248, 252 McMillan v Notre Dame Residence Club, 33 Misc.2d 948, 951).
If, however, the Board finds the injuries outside the purview of the Workers' Compensation Law, the employer who participated in the administrative hearing may not assert the affirmative defense of compensation coverage in the ensuing civil action (O'Rourke v Long, supra, at p 228 Gyory v Radgowski, supra, at p 869). As workers' compensation is an exclusive remedy (Workers' Compensation Law § 11), a determination by the Board that a plaintiff is entitled to compensation effectively precludes plaintiff from pursuing a civil remedy for his injuries even against defendants who were not parties to the hearing (O'Rourke v Long, supra, at pp 227-228 Gyory v Radgowski, supra). Thus, any party to the hearing who had the required notice and opportunity to be heard (Workers' Compensation Law § 25 ) will be precluded from relitigating issues necessarily decided by the administrative Judge (O'Connor v Midiria, 55 N.Y.2d 538, 541 Werner v State of New York, supra see, Restatement of Judgments § 27).
The Board's decision finally determines the controversy between the parties to the hearing (Workers' Compensation Law § 23 Werner v State of New York, 53 N.Y.2d 346) who are normally the injured employee and the employer or his workers' compensation carrier (Workers' Compensation Law § 25 ).
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