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Giardino v. Roberts Express, Inc. et al.

CASE NO. 1863 CRB-6-93-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 9, 1995

MICHAEL GIARDINO

CLAIMANT-APPELLANT

v.

ROBERTS EXPRESS, INC.

EMPLOYER

and

PROTECTIVE INSURANCE CO.

INSURER

and

MICHAEL NADEAU d/b/a FAST FREIGHT TRUCKING

EMPLOYER

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Donald E. Freeman, Esq., 21 Oak St., Hartford, CT 06106-1513.

The respondents Roberts Express, Inc. and Protective Insurance Co. were represented by John Keefe, Jr., Esq., Lynch, Traub, Keefe & Errante, 52 Trumbull St., New Haven, CT 06506.

The respondent Michael Nadeau was not represented at oral argument, and was not represented at trial.

The Second Injury Fund was not represented at oral argument, but was represented at trial by Nancy Sussman, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 1, 1993 Findings of Facts and Award of the Commissioner acting for the Sixth District was heard October 7, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Linda Blenner Johnson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 1, 1993 Findings of Facts and Award of the Commissioner for the Sixth District. He argues on appeal that the commissioner improperly ruled that the Workers’ Compensation Commission lacked jurisdiction over this case because the state of Connecticut had an insufficient connection to the claimant’s employment. We affirm the trial commissioner’s decision.

The commissioner found that the claimant, a resident of Connecticut, was hired by the respondent Michael Nadeau in November, 1989 to assist him in making cross-country deliveries. Nadeau, who did business out of Torrington under the name Fast Freight Trucking, is an independent contractor who entered into a contract with the respondent Roberts Express, Inc. (Roberts), an Ohio corporation, to make interstate truck deliveries. Nadeau also recruited and qualified employees for Roberts. In this case, Nadeau tested the claimant to make sure he qualified to drive for Roberts, and paid the claimant $400 per week during his four weeks of employment with Nadeau, understanding that the claimant was his own employee. He and the respondent then left Torrington to make cross-country deliveries, eventually arriving in California.

While the claimant was in California, a dispatcher from Roberts in Ohio contacted him and hired him to make a delivery from Bakersfield, California to Rodeo, California. Roberts paid the claimant $185.00 for the job. The claimant sustained an injury while making that delivery on November 28, 1989, and filed a workers’ compensation claim when he returned to Connecticut. The commissioner found that the claimant was employed by Roberts Express, Inc. at the time of his injury, that the contract was entered into while the claimant was in California and the employer in Ohio, and that the injury and the performance of the contract both took place in California. He consequently dismissed the claim for lack of jurisdiction, from which judgment the claimant appealed.

The claimant stresses the fact that he filled out an application for employment with Roberts at Nadeau’s home in Torrington, and that Nadeau administered employment tests to the claimant on behalf of Roberts in Connecticut. He also notes that the truck the two men drove from Connecticut to California was a Roberts truck, and that there was a computer on board the truck linked to Roberts’ offices in Akron, Ohio, allowing Roberts to direct the route the men followed to complete deliveries. He claims that these facts require a finding that Connecticut had jurisdiction over his claim pursuant to the test enunciated in Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181 (1991), the applicable law at the time of the claimant’s injury.

In Cleveland, our Supreme Court held that the Workers’ Compensation Act should be applied to cases where “an injured employee seeks an award of benefits and Connecticut is the place of injury, the place of the employment contract, or the place of the employment relation.” Id., 195; see also Kluttz v. Howard, 228 Conn. 401, 405-06 (1994). Here, it is undisputed that the injury did not occur in Connecticut, and the employment contract between the claimant and Roberts was not entered into in Connecticut. The claimant asserts, however, that the facts found by the commissioner mandate a finding that Connecticut was the place of the employment relation.

The commissioner found that the claimant was an employee of Roberts only during the delivery he made from Bakersfield to Rodeo, California. This finding is supported by the fact that Roberts paid the claimant for that job alone, while Nadeau paid the claimant during the four-week period in which he and the claimant traveled from Connecticut to California. The commissioner also found that Nadeau is not an agent of Roberts, but an independent contractor who hired the claimant as his own employee. As these findings are supported by the evidence, this Board will not disturb them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

These subordinate facts are fully consistent with the commissioner’s conclusion that the employment relation between Roberts and the claimant took place outside the state of Connecticut. See Simaitis v. Flood, 182 Conn. 24, 34 (1980). The facts cited by the claimant are not inconsistent with the commissioner’s finding that Nadeau merely acted as a recruiter for Roberts, in addition to hiring his own employees, and that the claimant was employed by Roberts only during the California intrastate delivery. We therefore hold that the commissioner’s decision to dismiss the instant claim was legally correct and supported by the underlying evidence. See Fair, supra.

The trial commissioner’s decision is affirmed.

Commissioners Michael S. Miles and Linda Blenner Johnson concur.

Workers’ Compensation Commission

Page last revised: January 21, 2005

Page URL: http://wcc.state.ct.us/crb/1995/1863crb.htm

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