
    In the Matter of Employers Claim Control Service Corporation, Appellant, v. Workmen's Compensation Board of the State of New York, Respondent. In the Matter of Consolidated Claims, Limited, et al., Appellants, v. Workmen’s Compensation Board, Respondent.
    Argued November 12, 1974;
    decided December 19, 1974.
    
      
      James J. Milligan tor Employers Claim Control Service Corporation, appellant.
    I. The board by the adoption of its “ policy ” with regard to insurance company connected applicants for licenses, in effect attempted to amend the Workmen’s Compensation Law and the Insurance Law, an action which was beyond its power and unlawful. (Matter of Small v. Moss, 279 N. Y. 288; Scarsdale Supply Co. v. Village of Scarsdale, 8 N Y 2d 325; Matter of Community Synagogue v. Bates, 1 N Y 2d 445; Matter of Picone v. Commissioner of Licenses of City of N. Y., 241 N. Y. 157; Matter of Vit-Al Bldg. Corp. v. Eccleston, 7 A D 2d 737; Matter of Federal Tel. & Radio v. Corsi, 301 N. Y. 95; Matter of Swalbach v. State Liq. Auth. of State of N. Y., 7 N Y 2d 518.) II. The construction of statutes is a question of law, and the board’s construction that-the statutes exclude an insurance company, or a corporation connected however remotely with an insurance company, is not binding on this court. (Matter of Bakas Rest. v. State Liq. Auth., 61 Misc 2d 592; Matter of Community Synagogue v. Bates, 1 N Y 2d 445; Matter of Guardian Life Ins. Co. of Amer. v. Bohlinger, 308 N. Y. 174; Matter of Barry v. O’Connell, 303 N. Y. 46; Matter of Faith for Today v. Murdock, 11 A D 2d 718, 9 N Y 2d 761.) III. The refusal of the hoard to issue the license to petitioner was arbitrary and capricious as a matter of law. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Small v. Moss, 277 N. Y. 501; Matter of Swalbach v. State Liq. Auth. of State of N. Y., 7 N Y 2d 518.) IV. If the board had any discretion in issuing the license, the discretion was abused. (Matter of Swalbach v. State Liq. Auth. of State of N. Y., 7 N Y 2d 518; Matter of Rochdale Mall Wines & Liqs. v. State Liq. Auth., 29 A D 2d 647, 27 N Y 2d 995; Matter of Alro Liqs. v. New York State Liq. Auth., 29 A D 2d 271, 27 N Y 2d 984.) V. There was no evidence to support the board’s denial of the application. (Matter of McCormack v. National City Bank of N. Y.; 303 N. Y. 5; Matter of Playboy Club v. State Liq. Auth. of State of N. Y., 23 N Y 2d 544.)
    
      Herbert Rosenberg and Alfred Miller for Consolidated Claims, Limited and another, appellants.
    I. The board’s grant of licenses to others in indistinguishable circumstances while denying appellants’ application for licenses (a) demonstrates the board’s arbitrariness and capriciousness, and (b) constitutes a violation of constitutional due process and the equal protection of the laws. (Matter of Wormsen v. Moss, 177 Misc. 19; Betty-June School v. Young, 25 Misc 2d 909; People v. Kuc, 272 N. Y. 72.) II. No grounds exist under the applicable statute or the board’s own rules thereunder, for denial of appellants’ license applications. (Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157; Matter of Bologno v. O’Connell, 7 N Y 2d 155; Matter of Small v. Moss, 279 N. Y. 288; Matter of Swalbach v. State Liq. Auth. of State of N. Y., 7 N Y 2d 518; Matter of Meit v. P. S. & M. Catering Corp., 285 App. Div. 506; Boord v. O’Brien, 277 App. Div. 253, 302 N. Y. 890; Frost v. Jones, 207 Misc. 1086; Matter of Gross v. New York City Alcoholic Beverage Control Bd., 7 N Y 2d 531). III. In enacting section 85-a of the Insurance Law, the Legislature intended to enable and encourage insurers and their subsidiaries to engage in activities of the type for which petitioners seek licensing. (Ferraiolo v. O’Dwyer, 302 N. Y. 371.)
    
      
      Louis J. Lefkowitz, Attorney-General (Thomas R. McLoughlin and Samuel A. Hirshowitz of counsel), for respondent.
    I. The holding that the board properly refused to countenance the evasion of the insurance carriers from representing self-assureds by the device of creating a wholly-owned subsidiary is in line with the clear mandate of the Legislature and in conformity with the rules of the board which were not challenged by petitioner. (Matter of Sigety v. Ingraham, 29 N Y 2d 110; Lightbody v. Russell, 293 N. Y. 492; Douglas v. Beneficial Finance Co. of Anchorage, 469 F. 2d 453; Immigration Serv. v. Stanisic, 395 U. S. 62; Matter of Selian v. Kelly, 3 A D 2d 669; Matter of Leogrande v. State Liq. Auth. of State of N. Y., 19 N Y 2d 418; Matter of New York Shipping Assn.-Int. Longshoremen’s Assn. Med. Center of Brooklyn v. Medical Appeals Unit of Bur. of Workmen’s Compensation, 29 A D 2d 934, 24 N Y 2d 908; Matter of Fink v. Cole, 1 N Y 2d 48; Szold v. Outlet Embrodiery Supply Co., 274 N. Y. 271, 303 U. S. 623.) II. The Insurance Law revision did not affect the board’s disposition. (St. Regis of Mohawk Indians v. State of New York, 5 N Y 2d 24, 359 U. S. 910; Woollcott v. Shubert, 217 N. Y. 212; Interchemical Corp. v. Mirabelli, 269 App. Div. 224.)
   Chief Judge Breitel.

In proceedings brought by an insurance carrier and two claims service bureaus to review determinations of the Workmen’s Compensation Board, petitioners appeal (CPLR art. 78). The board had denied them licenses to represent self-insurers. The issue, on this joint appeal, is whether an insurance carrier or a controlled subsidiary or affiliate may represent self-insurers before the board.

The Supreme Court, New York County, annulled the board’s determinations and directed issuance of the licenses. The Appellate Division unanimously reversed rand dismissed the petitions.

The orders of the Appellate Division should be affirmed.

Under the board’s rules the representation of self-insurers is properly limited to licensees who must exclusively represent self-insurers. Thus such licensed claims representatives may not also represent carriers before the board. A fortiori, a licensed representative of a self-insurer may not be a carrier or a controlled subsidiary or affiliate.

Petitioner Employers Claim Control Service Corporation is a wholly-owned subsidiary' of National Loss Control Service Corporation, an Illinois corporation, and implicitly admitted affiliation with an insurer: Petitioner Consolidated Claims, Limited is a' wholly-owned. subsidiary of Consolidated Mutual Insurance Co. Petitioner Utica Mutual Insurance Company and Consolidated Mutual Insurance Company are New York fire and casualty insurance companies, each of which writes workmen’s compensation insurance.

Consolidated Claims and Utica Mutual each applied to the Workmen’s Compensation Board for licenses to represent self-insurers on compensation claims before the board. On January 10, 1972,- the board unanimously denied both applications, adopting and following a comprehensive report by a committee -of the board.

After a public hearing, the committee had concluded, inter alia, that insurance carriers or their subsidiaries could not comply with the Rules -of Conduct for Licensed Representatives, namely, that licensees authorized to represent self-insurers must limit their practice to the representation of self-insurers. Thereafter, ¡on March 21, 1972, the board also denied Employers -Claim Control Service’s license application, citing board policy Us established in the Utica Mutual and Consolidated Claims matter.

Subdivision 3-b of section 50 of the Workmen’s Compensation Law -authorizes the board to issue, in accordance with its rules, licenses to nonlawyers wishing to represent-self-insurers, and it may require ‘‘ such proof of character and fitness as it may deem necessary”. Another part of the statute authorizes the board generally to adopt reasonable rules consistent with and supplemental to the provisions of this chapter and the labor law ” (§ 117).

Purportedly adopted under the board’s statutory - authority, a board rule provides ¡that [1] icensees authorized to represent self-insurers shall limit their practice to the representation of self-insurers ’ ’ (12 NYCRR 302-1.1 [c]). Applicants do not in this court challenge the validity of the rule. They contend, however, that the -board’s denial of the applications was arbitrary and capricious and constituted an abuse of discretion (see CPLR 7803, subd. 3).

The Legislature ¡may ¡delegate to a licensing body the power to exercise discretion with respect to the qualifications of licensees. True, the delegation must be accompanied by standards (see Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184,. 190; Matter of Barton Trucking Corp. v. O’Connell, 7 A D 2d 36, 38, revd. on other grounds 7 N Y 2d 299). The Legislature, however, is not required to specify details, but -fieed only provide a general guide for the licensing body (see Matter of Elite Dairy Prods. v. Ten Eyck, 271 N. Y. 488, 495-496). Thus, under a general standard of “fitness” it has been held that an administrative agency may determine an applicant’s “fitness” for a particular occupation (see Matter of Mandel v. Board of Regents, 250 N. Y. 173, 175, 177).

The board’s provision for .the exclusive representation of self-insurers is not contested' in this court, and, in any event, is a proper exercise of its rulemaking power. It may therefore bar a license to one who could not conform to the rule of exclusive representation, that is,'would not qualify .as “fit” to engage in the licensed activity (see Workmen’s Compensation Law, § 50, subd. 3-b).

Petitioners would avoid the effect of the rule for exclusive representation of self-insurers by arguing that particular agents of petitioners would handle claims .against the self-insurers exclusively. This .argument, however, flies in the face of the rule and the reasons for its promulgation.

The committee report demonstrated that functions of coverage and claims satisfaction under the Workmen’s Compensation Law are best performed by exclusively separated insurers, namely, private carriers, the State Insurance Fund, and self-insurers. These three categories of insurers are competitive with one another, and to avoid conflicts of interest, an independent licensed representative of .self-insurers may not be retained to represent a carrier, as the rule plainly provides. It follows therefore that a carrier may not itself be licensed to represent a self-insurer.

Parallel reasoning applies to a subsidiary or affiliate controlled by a private, carrier. Otherwise that would be permitted to be done indirectly what is forbidden to be done directly.

The technique of upiercing ,the corporate veil”, or, in the words of the board, the principle that ‘ ‘ that which cannot be done directly may not .be achieved by indirection ”, is a commonplace in the law (see Walkovszky v. Carlton, 18 N Y 2d 414, 417-418; Matter of Iroquois Gas Corp. v. Maltbie, 251 App. Div. 528, 529, affd. 279 N. Y. 575; see, generally, Disregarding Corporate Entity, Ann., 46 ALR 3d 428, 430-431; Corporate Liability — Subsidiary, Ann., 38 ALR 3d 1102, 1112; Corporations — Torts of Subsidiary, Ann., 7 ALR 3d 1343, 1349). In the Iroquois Gas ease, it was succinctly stated that 1 ‘ Separate corporations, with common stock ownership, should not be treated as individual entities if thereby reasonable regulation is hampered ” (251 App. Div., at p. 529).

The board was, therefore, justified in holding that the rule may not be circumvented by the transparent expedient of nsing a controlled subsidiary or affiliate -of ¡an insurance carrier to practice as a representative of self-insurers.

(Moreover, the use of nonlawyers to represent employers is a departure from the general policy that corporate representation must be, by lawyers [cf., e.g., CPLB 321, subd. (.a)]. Such a departure should ¡always be cautiously controlled to avoid the dangers inherent in representation by those without legal training or professional discipline and standards [see In re Unauthorized Practice of Law, 175 Ohio St. 149, in which the Supreme Court of Ohio held practice by nonlawyers before the Industrial Commission to be unauthorized practice of law, notwithstanding the commission’s statutory authority to determine ¡by rule the qualifications of those who may practice before it and before the Bureau of Workmen’s Compensation; see, generally, Practice of Law — Compensation Claim, Ann., 2 ALR 3d 724, 726-727].)

In addition, and most important, the board was entitled to conclude that the mixing of carriers and self-insurers, offering competitive alternatives to satisfying the Workmen’s Comr pensation Law, was injurious to the public interest, the employers, and the protected employees. That the mixing waé to occur only at the level of servicing claims does not minimize, but enhances the risk cf conflicts cf interest. Indeed, it is difficult to comprehend why insurers should' foster a service which would or should increase the growth of sélf-insurance.

The authority for denial of ia license was formulated in Matter of Elite Dairy Prods, v. Ten Eyck: “ A determination of the 'Commissioner which denies to an applicant a license to 'engage in business may be .reviewed by the courts. The determination may be annulled where it does not 'appear that it is based soundly upon a ground for which the applicant may, in accordance with law, be excluded from engaging in a business which would, otherwise, be lawful. Before a court may direct that a license shall be issued, it must appear, ,as a matter of law, that no valid ground exists for its denial” (271 N. Y. 488, 493, supra [emphasis in original]; see, also, Matter of Barton Trucking Corp. v. O’Connell, 7 N Y 2d 299, 308, supra; cf. Matter of Fink v. Cole, 1 N Y 2d 48, 53; Matter of Small v. Moss, 279 N. Y. 288, 293-294).

Hence, denial of the licenses under the board’s rule for exclusive representation of self-insurers may be set aside only if it appears that there was no valid ground for denial. But the contrary was here shown to be the case.

Accordingly, the orders of the Appellate Division should be affirmed, with costs.

Judges Jasen, Gabrlelli, Jones, Wachtler and Rabin concur; Judge Stevens taking no part.

In each case: Order affirmed.  