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Dupree v. Gary Masters, D/B/A Gary Masters Construction

CASE NO. 1791 CRB-7-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 25, 1995

JAMES RICHARD DUPREE

CLAIMANT-APPELLANT

v.

GARY MASTERS, D/B/A GARY MASTERS CONSTRUCTION

EMPLOYER

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Guy L. DePaul, Esq., Jones, Damia, Kaufman, Wellman, Borofsky & Stelljes, 29 Sugar Hollow Road, P. O. Box 2929, Danbury, CT 06813-2929.

The respondent was represented by Ernie Walker, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

The Petition for Review from the July 9, 1993 Finding and Dismissal of the Commissioner acting for the Seventh District was heard June 24, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the Seventh District Commissioner’s July 9, 1993 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 February 22, 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 Co., 10 Conn. Workers’ Comp. Rev. Op. 77, 1151 CRB-4-90-12 (April 3, 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 the nature of the work which claimant engaged in for respondent, could have been performed as either an independent contractor or as an employee. However, the commissioner further found that the respondent did not withhold social security or federal income tax payments from the claimant’s wages, and that the claimant considered himself self employed for tax purposes, paying his own income taxes and social security taxes at self employment rates. The claimant acknowledged this relationship by accepting 1099 forms from the respondent which showed that respondent paid claimant $8,762.00 in non-employee compensation for 1989 and $27,320.00 in non-employee compensation for 1990. Claimant’s 1989 and 1990 federal tax returns included a Schedule C (Profit or Loss From Business) and Schedule E indicating payment of social security self employment taxes. On that basis, the commissioner found that claimant was an independent contractor on the date of injury, February 22, 1990.

The claimant argues that Hynd, supra, is inconsistent with the trial commissioner’s conclusion. In Hynd, the respondent contended that the claimant was an independent contractor, having executed a Freelance Agreement acknowledging same, as well as the fact that respondent did not deduct social security or income taxes from claimant’s pay or provide medical benefits or sick, vacation or holiday pay. The commissioner found that the existence of the Freelance Agreement and the fact that the respondent did not deduct taxes from the claimant’s wages or provide medical benefits or sick, vacation or holiday pay were not sufficient to prove independent contractor status. The commissioner also considered the testimony of the claimant which revealed that claimant was pressured into accepting the designation of independent contractor after working for respondent for approximately sixteen months. The evidence revealed that claimant was paid an hourly wage and received time and a half over forty hours, and was expected to work at respondent’s graphics department from 9:00 a.m. to 5:00 p.m. on a daily basis, all of which did not change after execution of the Freelance Agreement. Unlike the claimant in the instant appeal, the claimant in Hynd lacked the ability to perform her work by her own methods and without control of the respondent. We hold, therefore, that Hynd is not controlling.

In the instant case, we conclude that the subordinate facts support the commissioner’s determination 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.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

Workers’ Compensation Commission

Page last revised: January 21, 2005

Page URL: http://wcc.state.ct.us/crb/1995/1791crb.htm

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