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DaSilva v. Danbury Publishing Co., A Division of Ottaway Newspapers, Inc.

CASE NO. 1647 CRB-7-93-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 2, 1994

RONALD DaSILVA

CLAIMANT-APPELLANT

v.

DANBURY PUBLISHING CO., A DIVISION OF OTTAWAY NEWSPAPERS, INC.

EMPLOYER

and

CIGNA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Scott R. McCarthy, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

The respondents were represented by David W. Schoolcraft, Esq., Trowbridge, Schoolcraft & Basine, 207 Main Street, Hartford, CT 06106-5314.

This Petition for Review from the February 11, 1993 Finding and Dismissal of the Commissioner for the Seventh District was heard February 25, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.

OPINION

JESSE FRANKL, CHAIRMAN. In this appeal, the claimant challenges the trial commissioner’s determination that the claimant, who delivered a daily newspaper published by the Danbury Publishing Company, was an independent contractor and therefore not entitled to benefits under the Workers’ Compensation Act. We affirm the trial commissioner.1

The trial commissioner found the following facts. On February 16, 1983, the claimant was 14 years of age. He was injured while in the process of delivering The News Times, an afternoon newspaper published by the Danbury Publishing Company, to residential subscribers in Danbury. The Danbury Publishing Company dropped off its newspapers each day at the claimant’s house for delivery by him to subscribers designated by the Danbury Publishing Company. The claimant purchased those newspapers from the Danbury Publishing Company at a wholesale price and sold them to the subscribers on his route at a retail price suggested by the Danbury Publishing Company. The claimant kept all monies, including tips, received from the subscribers over and above the wholesale cost of the newspapers. The claimant was billed each week by the publisher for the wholesale cost of the newspapers delivered to him and was responsible for the payment of that bill regardless of whether the subscribers to whom he delivered had as yet paid him. The claimant maintained a record of his collections in a book which he purchased from the Danbury Publishing Company. In delivering the newspapers, the claimant traveled on foot or on his own bicycle, carrying the newspapers in a bag which he purchased from the Danbury Publishing Company. The claimant was orally advised of a guideline calling for delivery of the papers by a certain time. He was not, however, told in what order to deliver the newspapers along his route, and the claimant adopted his own routine for their daily delivery. If the claimant was, for any reason, not available to do all or any part of his delivery route at any given time, he was personally responsible for getting a substitute to do so. The claimant and other carriers for the Danbury Publishing Company were free to deliver publications other than The News Times, and they could solicit new customers even if those customers were located on another carrier’s route. If a carrier failed to deliver a newspaper to a subscriber on a given day, the Danbury Publishing Company would do so, but if a carrier were repeatedly remiss in completing a delivery route, the publisher would stop wholesaling newspapers to that carrier.

Based on the evidence presented, the trial commissioner further found that the claimant was an independent contractor and not an employee of Danbury Publishing Company. The commissioner therefore dismissed the claim for compensation. This appeal followed.

In his Reasons of Appeal, the claimant challenges the commissioner’s denial of (1) his motion for reconsideration and (2) his motion to correct. In pursuing this appeal, however, the claimant has chosen to rely on the memorandum of law which he submitted to the trial commissioner prior to the issuance of the Finding and Dismissal. By failing to file an appeal brief, the claimant has necessarily failed to brief his challenges to the commissioner’s actions with respect to the motion for reconsideration and the motion to correct, as both motions were filed and decided after the trial brief was prepared. Issues which are not briefed are deemed to be abandoned. Papagorgiou v. Anastopuolous, 29 Conn. App. 142, 148-49, cert. denied, 224 Conn. 919-20 (1992); Reale v. Carducci, 9 Conn. Workers’ Comp. Rev. Op. 31, 32 n. 1, 901 CRD-1-89-8 (1991).

The claimant’s appeal does challenge the commissioner’s determination that he was not an employee, but was an independent contractor. Although this issue was not raised in his Reasons of Appeal, we will address it as the issue is central to the case and the issue has been fully briefed by both parties. See Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn. App. 515, 524 (1993), aff’d, 229 Conn. 176 (1994); see also LaChance v. UTC/Pratt & Whitney Aircraft Div., 1345 CRD-1-91-11 footnote 2 (decided January 27, 1994).

“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 methods 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 the work. . . .” (Emphasis added; citations omitted; internal quotation marks omitted.) Chute v. Mobil Shopping & Transportation Co., 32 Conn. App. 16, 19-20, cert. denied, 227 Conn. 919 (1993).

We are satisfied that the subordinate facts, as found by the commissioner and set forth above, amply support the commissioner’s determination that the claimant was an independent contractor for purposes of the Workers’ Compensation Act. It therefore follows inescapably that the claimant was not an employee of the Danbury Publishing Company and was not entitled to benefits under the Act. Because the conclusions drawn by the commissioner reflect an appropriate application of the law to the subordinate facts, those conclusions must stand. Id., 21; see also Scorpion v. American Republican, Inc., 131 Conn. 42, 48-50 (1944); Ross v. Post Publishing Co., 129 Conn. 564 (1943).

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

Commissioner Nancy A. Brouillet concurs.

MICHAEL S. MILES, COMMISSIONER, dissenting. This claimant, fourteen years old, at the time of the accident, was a “paperboy” delivering the respondent employer’s newspapers. Central to the claimant’s status is the employer’s right to control, Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624 (1961).

To determine this claimant was not under the control of the respondent-employer, and thus an independent contractor is to ignore the realities of the moment and to engage in fiction. I am not satisfied that the subordinate facts as found by the trial commissioner support a finding that this claimant was an independent contractor.

Accordingly, I dissent.

1 The respondents filed a motion to dismiss the appeal based on the claimant’s failure to timely file his Reasons of Appeal. See Administrative Regulation Sec. 31-301-2. That motion, however, was not filed within ten days after the date when the Reasons of Appeal were required to be filed. Under such circumstances, we may not dismiss the appeal pursuant to Practice Book Sec. 4056 as requested by the respondents. Sager v. GAB Business Services, 11 Conn. App. 693 (1987). BACK TO TEXT

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State of Connecticut Workers’ Compensation Commission, John A. Mastropietro, Chairman
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