Calamari v. Durham-Middlefield Interlocal Advisory Board

The claimant was represented by Steven J. DeFrank, Esq., Jacobs, Grudberg, Belt & Dow, P.C., 350 Orange Street, P.O. Box 606, New Haven, CT 06503.

The respondents were represented by Steven G. Ekern, Esq. and James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd, Glastonbury, CT 06033.

This Petition for Review from the November 25, 1992 Finding and Dismissal of the Commissioner for the Eighth District was heard December 2, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl, and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the Eighth District Commissioner’s November 25, 1992 Finding and Dismissal. On appeal, the claimant challenges the trial commissioner’s finding that the claimant was performing services for the respondent-employer as an independent contractor when he was injured on May 14, 1990. We affirm the trial commissioner.

“Throughout the history of workers’ compensation in our state the conflict between independent contractor and employee status has been a recurrent theme.” Hynd v. General Electric Company, 10 Conn. Workers’ Comp. Rev. Op. 77, 1151 CRB-4-90-12 (1992). “Our courts have long recognized that independent contractors are not within the coverage of the Workers’ Compensation Act . . . . The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact . . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and method of work . . . . For purposes of workers’ compensation, an independent contractor is defined as one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work . . . .” (Citations omitted; internal quotation marks omitted.) Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16, 19-20, cert. denied, 227 Conn. 919 (1993).

In this case, the commissioner found that “[t]he claimant received no control or direction from [respondent-employer].” On this basis, the commissioner concluded that the claimant was an independent contractor and dismissed the claim. We are satisfied that the subordinate facts support the commissioner’s finding.

At the time of the injury, the claimant was performing gate guard services. He worked irregular hours, without advance notice to or assignment by the employer. The claimant billed the respondent-employer for his services as a consultant on a monthly basis. No monies were withheld from the payment of those billings to cover federal income tax or Social Security withholdings. In fact, the claimant was paid two dollars per hour more than the respondent-employer was paying its other employees in order to make it possible for the claimant to pay his own Social Security and any insurance that was appropriate.

In light of the foregoing, we conclude that the subordinate facts support the commissioner’s determination that the claimant was an independent contractor for the purposes of the Workers’ Compensation Act. It therefore follows inescapably that the claimant was not an employee of the respondent-employer and that he was not entitled to benefits under the Act. Chute v. Mobil Shipping & Transportation Co., supra, 21. Because the conclusions drawn by the commissioner reflect an appropriate application of the law to the subordinate facts, we must affirm the decision of the commissioner. Id.

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioner Donald H. Doyle, Jr. concurs.

GEORGE A. WALDRON, COMMISSIONER (Dissenting). The evidence indicates to me that the respondent had sufficient control over the claimant’s activities to maintain an employer-employee relationship.

The claimant was a full-time employee of the respondent until June 30, 1987. The respondents claim that they terminated him on June 30, 1987, however he was back working at the same site on July 1, 1987. The respondents had changed their method of paying wages to the claimant subsequent to July 1, 1987, but they controlled the claimant’s work activities. The administrator of the landfill would instruct the claimant on any new procedures that were to be implemented at the landfill. The administrator maintained the right to discharge the claimant. The claimant could be called into work if there was a high volume of business at the landfill. Other workers would occasionally perform the claimant’s duties as a gate guard. The claimant was not an independent contractor that was in the business of operating landfills. He was hired specifically to be the gate guard at the landfill. The manner and methods he used to perform his duties were under the direction and control of the administrator of the landfill. “One is an employee of another when he renders a service for the other and when what he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained.” (citation omitted) Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624, 629 (1961).

I am convinced that the respondent maintained authority over the direction of how the claimant performed his work, and the right of control of his work was present at the time of the claimant’s injuries on May 14, 1990.