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Carrier v. Joseph Voisine et al.

CASE NO. 2093 CRB-3-94-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 11, 1996

NELSON CARRIER

CLAIMANT-APPELLEE

v.

JOSEPH VOISINE

EMPLOYER

NO INSURANCE

RESPONDENT-APPELLEE

and

REDSTONE DEVELOPMENT CORPORATION

EMPLOYER

NO INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Ivan Katz, Esq., 234 Church St., New Haven, CT 06510-1804.

The respondent Redstone Development was represented by Jan A. Marcus, Esq., Law Offices of John Haymond, 961 Main Street, Suite 1, Bridgeport, CT 06604.

The respondent Joseph Voisine was not represented at trial or at oral argument on appeal. Notice sent to Joseph Voisine, P. O. Box 1532, Wallingford, CT 06492.

The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 29, 1994 Finding of Compensability of the Commissioner acting for the Third District was heard June 9, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent Redstone Development Corp. has petitioned for review from the June 29, 1994 Finding of Compensability of the Commissioner acting for the Third District. It argues on appeal that the trial commissioner erroneously found the claimant to be an employee of the respondents. We reverse the trial commissioner’s decision.

The trial commissioner found that the respondent Joseph Voisine was hired by the respondent Redstone Development Corp. (Redstone) as an independent contractor to install sheetrock as part of a Branford real estate development project. Voisine in turn hired the claimant, a drywall installer, to complete the sheetrock work on an elevator shaft. Voisine supplied all of the necessary materials except the sheetrock, and took no deductions from the payment made to the claimant for completing the elevator shaft. A written agreement between Voisine and the claimant existed for the elevator shaft job. The commissioner concluded that the claimant was acting as an independent contractor when he worked on the elevator shaft.

Redstone and Voisine had also contracted for sheetrock work at a garage on the same job site. Voisine had the authority to hire help to complete that sheetrocking. The claimant prepared and signed a written subcontracting agreement for the garage job, but Voisine did not sign the agreement. Instead, Voisine took the agreement with the intent to present it to Redstone’s president for approval. In the meantime, Voisine had instructed the claimant to begin work on the garage. The claimant was struck in the right eye by a nail on February 9, 1993, while using a nail gun that was available on the job site. At the time of the injury, the subcontracting agreement had not yet been completed, and neither Voisine nor Redstone had workers’ compensation insurance.

The commissioner found that the claimant generally worked as an independent contractor. Because there was no signed agreement in effect to establish that status on the date of injury, however, he found that Voisine was in control of the claimant’s work activities. He concluded that the claimant was not working as an independent contractor on the date of injury, and that his injury arose out of and in the course of his employment with Voisine, who was in turn a subcontractor of Redstone. Redstone has appealed that decision.

Whether or not an individual is an employee is a question of fact for the trial commissioner to decide. Keefe v. Flynn, 10 Conn. Workers’ Comp. Rev. Op. 98, 99, 1169 CRD-2-91-1 (April 23, 1992), citing Francis v. Franklin Cafeteria, Inc., 123 Conn. 320 (1937). “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.” Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961). On the other hand, “[a]n independent contractor is 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.” Chute v. Mobil Shipping, 10 Conn. Workers’ Comp. Rev. Op. 183, 186, 1321 CRD-7-91-10 (Sept. 1, 1992) (citation omitted), affirmed, 32 Conn. App. 16 (1993); see also Muniz v. Koteas, 1720 CRB-4-93-5 (decided April 21, 1995). Unlike employees, independent contractors are not within the coverage of the Workers’ Compensation Act.

As long as there is evidence to support the trial commissioner’s conclusion that the claimant was an employee rather than an independent contractor, this board will not disturb that decision. Hynd v. General Electric Co., 10 Conn. Workers’ Comp. Rev. Op. 77, 78, 1151 CRB-4-90-12 (April 3, 1992). This is because the weight and credibility to be accorded the evidence is for the trial commissioner to determine rather than the review panel. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995). After examining the findings in this case, however, we have come to the conclusion that there was not enough evidence in the record to support the outcome reached below.

The trial commissioner specifically found that, pursuant to a written agreement, the claimant was acting as an independent contractor when he worked on sheetrocking the elevator job. He then concluded that because a similar agreement was not signed by both parties for the garage job, the claimant was an employee of Voisine at the time of the injury. Presumably, therefore, if the second proposal had been signed by Voisine, the claimant would have become an independent contractor again under the trial commissioner’s reasoning. Focusing exclusively on the subcontracting agreement is inappropriate, however, under the test used to determine employment status.

Our cases establish that the key factor in establishing employee status is the right of the employer to control how and when the employee’s work should be done. Hynd, supra; Reale v. Carducci, 9 Conn. Workers’ Comp. Rev. Op. 31, 32, 901 CRD-1-89-8 (Jan. 17, 1991). The label agreed to by the parties is not determinative; the actual work relationship is what matters. Muniz, supra; see also Latimer v. Administrator, 216 Conn. 237, 251 (1990). The absence of a signed subcontracting agreement has little or no bearing on the issue of whether Voisine or Redstone had the right to control the means and method of the claimant’s work. The facts found by the trial commissioner do not tend to establish that Voisine had any control over the manner in which the claimant performed his work sheetrocking the garage. We therefore cannot allow the trial commissioner’s decision to stand. See Reale, supra.

The trial commissioner’s decision is reversed, and the case is remanded for further findings.

Commissioners Roberta S. Tracy and Amado J. Vargas concur.

Workers’ Compensation Commission

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