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Downes v. Robban Sica-Cohen, M.D.

CASE NO. 2259 CRB-4-95-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 13, 1996

GERALDINE DOWNES

CLAIMANT-APPELLANT

v.

ROBBAN SICA-COHEN, M.D.

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by D. Kirt Westfall, Esq., Nathanson & Cipriano, P.C., 60 Washington Ave., P. O. Box 5516, Hamden, CT 06518.

The respondent Robban Sica-Cohen, M.D. was represented by Rosemarie Paine, Esq., and Richard Gross, Esq., Cantor, Flowman, Russell & Gross, P.C., 378 Boston Post Road, P. O. Drawer 966, Orange, CT 06477.

The Second Injury Fund was not represented at oral argument. Notice sent to Ernie Walker, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 30, 1994 Finding and Dismissal of the Commissioner acting for the Fourth District was heard March 15, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 30, 1994 Finding and Dismissal of the Commissioner acting for the Fourth District. She argues on appeal that the commissioner erroneously failed to find that the claimant was an employee of the respondent Robban Sica-Cohen, M.D. We affirm the trial commissioner’s decision.

The commissioner found that the respondent practiced medicine in Connecticut, while the claimant was a registered nurse and a clinical ecologist. In 1990, the claimant proposed that the respondent start an environmental medicine department as part of her practice, using the claimant’s services. The respondent agreed, and she and the claimant entered into an oral contract to create and operate jointly a clinical ecology practice. Two months later, in January 1991, the respondent had an agreement drawn up and submitted to the claimant for her signature in an effort to reduce their arrangement to writing. This agreement, which labeled the claimant an independent contractor, was not executed.

The commissioner found that the claimant had paid her own professional fees and malpractice insurance premiums while she performed her services. She also set her own hours of work, and sometimes saw patients away from the office and at her home. The respondent bore the expense of setting up an office and purchasing all the equipment and medications. As was outlined in the unexecuted agreement, the claimant received 50 percent of the gross fees collected from patients she serviced. No FICA contributions or income tax deductions were withheld from this remuneration. The claimant received almost $30,000 for her services between January and August 1991; on August 20, 1991, the relationship between the claimant and respondent was terminated after the doctor told the claimant she wanted to change her method of payment to an hourly rate. After the relationship was terminated, the claimant in her own name sued several patients for fees related to her services. Those fees were ultimately paid to the respondent’s office.

The commissioner concluded from these facts that the respondent did not control when or how the claimant did her job, and therefore ruled that she was an independent contractor, not an employee, during her eight-month relationship with the respondent. Thus, the claimant’s allegation of a compensable injury due to pesticide exposure was dismissed. The claimant has appealed that decision to this board, along with the denial of her Motion to Correct.

It is well-settled law in this state that 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). An independent contractor, on the other hand, contracts to do a piece of work according to her own methods and absent the control of an employer, except as to the result of her labor. Nelson v. Deb’s, Inc., 2228 CRB-3-94-12 (decided June 20, 1996); Chute v. Mobil Shipping, 10 Conn. Workers’ Comp. Rev. Op. 183, 186, 1321 CRD-7-91-10 (Sept. 1, 1992), aff’d, 32 Conn. App. 16 (1993). The dispositive factor in distinguishing between an employee and an independent contractor is thus the alleged employer’s right to control how and when the employee’s work is done. Nelson, supra; Carrier v. Voisine, 2093 CRB-3-94-7 (decided Jan. 11, 1996).

In reviewing the application of that law to the facts of this case, we must keep in mind that this board is not charged with making determinations of evidentiary credibility. That is the trial commissioner’s job. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The findings made by the trier of fact can be disturbed only if the facts found are completely without evidentiary support, or if the trier’s findings omit undisputed material facts. Id.; see also Nelson, supra. Further, the commissioner’s legal conclusion that the claimant was an independent contractor must stand unless such an inference was illegal given the underlying facts, or unless the law was incorrectly applied. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).

The claimant urges that the commissioner improperly refused to grant certain corrections to the Finding and Dismissal. These include amendments to the findings to reflect that 80 percent of the claimant’s practice required the direct supervision of a licensed physician; that the claimant had practiced clinical ecology as an employee in the past; and that the claimant and respondent had never actually agreed to jointly operate the clinical ecology practice. Each of these corrections was based on testimony that at best ambiguously supports the claimant’s proposed corrections, however. Clearly, the commissioner had the discretion as fact-finder both to interpret that testimony differently, or ignore it altogether. Webb, supra, 71. He committed no reversible error in denying the Motion to Correct.

The claimant also argues that § 20-87a(a) C.G.S. requires a finding that the claimant was an employee rather than an independent contractor based on the level of physician supervision required under the statute. The cited section defines the practice of nursing as “the process of diagnosing human responses to actual or potential health problems, providing supportive and restorative care, health counseling and teaching, case finding and referral, collaborating in the implementation of the total health care regimen and executing the medical regimen under the direction of a licensed physician or dentist.” We are uncertain as to the accuracy of the claimant’s assertion that this statute required actual supervision for the majority of her work activities as described in the findings. Even if we were to accept that argument, however, it would not translate into a legal requirement that the claimant not be considered an independent contractor. As the respondent points out in her brief, the claimant has not shown that this definition of “nursing” created legal obligations on the parts of both parties to limit the claimant’s control over the means and methods of her work. See Kaliszewski, supra.

Instead, we observe that the commissioner’s findings that the respondent’s role was limited to setting up the claimant’s office and to sharing the gross fees with her are well-supported by the transcripts and the exhibits. There was a significant amount of evidence presented to indicate that the claimant conducted her business as she alone preferred. These findings could reasonably lead to the conclusion that the claimant was an independent contractor rather than an employee of the respondent. We would be remiss in disturbing those findings on review.

The trial commissioner’s decision is affirmed.

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

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