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Thornton v. Keith Kabel & Richard Kabel D/B/A Kabel Brothers Landscaping

CASE NO. 3027 CRB-4-95-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 26, 1996

DAVID L. THORNTON

CLAIMANT-APPELLEE

v.

KEITH KABEL & RICHARD KABEL D/B/A KABEL BROTHERS LANDSCAPING

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Robert Carter, Esq., Carter & Civitello, Woodbridge Office Park, One Bradley Road, Suite 301, Woodbridge, CT 06525.

The respondents-employer was represented by Peter V. Gelderman, Esq., 175 Post Road West, Westport, CT 06880.

The respondent-Second Injury Fund was represented by Yinxia Long, Esq., and Kenneth Kennedy, Esq., Assistant Attorneys General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition For Review from the March 21, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard January 26, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl, and Commissioners George Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents-employer has petitioned for review from the March 21, 1995 Finding and Award of the Commissioner acting for the Fourth District. In that Finding and Award the trial commissioner concluded that the claimant in this matter was an employee of the respondents-employer at the time the claimant sustained his various injuries which give rise to the instant claim. The respondents-employer took the instant appeal.1 The ultimate issue presented for review is whether the trial commissioner erred in concluding that the claimant was an employee of the respondents and not an independent contractor.

The pertinent facts as found by the trier are as follows. On October 5, 1991, the claimant was engaged in activities relating to tree removal as part of services to be performed by the respondents on residential property located on Johnson Road in Trumbull, CT. Prior to that date, and on various occasions, the claimant performed tree removal services for the respondents and others. In their estimate to the property owner, the respondents included an estimate provided by the claimant as to the cost for the removal of trees from the Johnson Road property. In his estimate, the claimant concluded that the cost would be $400.00 based on eight hours of work at $50.00 per hour.

The trier found that the respondents requested claimant’s help in felling the larger and more difficult trees. On October 4, 1991 the claimant arrived at the Johnson Road job site at around noon. On October 4-5, 1991 the claimant worked mostly feeding branches into a wood chipper owned by the respondents. At some point the respondents requested that the claimant tie off some trees which were to be cut down by the respondents. The claimant began the process of climbing the trees to be felled and placing a rope around certain limbs to aid in controlling the limbs as they fell. One of the respondents, Keith Kabel directed the claimant to climb a particular tree and attach a rope around certain parts of the tree. To accomplish this, the claimant used the rope provided by the respondents and attached the clip of his safety harness to the rope. As the claimant began descending from the tree, the clip broke. The claimant fell to the ground sustaining fractures to this right tibia, right ankle, second lumbar vertebra and a bulging of the intervertebral disc at the second and third vertebra level.

At issue is whether the trial commissioner erred in concluding that the claimant was an employee of the respondents. Most recently our Appellate Court reiterated that “Whether someone is an employee or an independent contractor is a question of fact, absent controlling circumstances”. Dasilva v. Danbury Publishing Company, 39 Conn. App. 653, 656 (1995). See also; Francis v. Franklin Cafeteria, 123 Conn. 320 (1937); Carrier v. Voisine, 2093 CRB-3-94-7 (decided January 11, 1996); Zawadzki v. Zaleski, 14 Conn Workers’ Comp. Rev. Op. 322, 1973 CRB-1-94-2 (September 15, 1995); Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 1720 CRB-4-93-5 (April 21, 1995), Hynd v. General Electric Co., 10 Conn. Workers’ Comp. Rev. Op. 77, 1151 CRB-4-90-12 (1992). As such, the conclusions of the trial commissioner must stand unless without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Additionally, this tribunal will not disturb factual findings and conclusions reached by the trier when based on the weight and credibility accorded the evidence and testimony below. See Miller v. Kirshner, 225 Conn. 185, 198 (1993); Rivera v. Guida’s Dairy, 167 Conn. 524 (1975) (per curiam). See also, Pisani v. Messore, 8 Conn. Workers’ Comp. Rev. Op. 11, 753 CRD-3-88-7 (1989).

Furthermore, whether one is an employee or independent contractor turns on the control which the purported employer may exhibit over the work activities of the claimant. “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). Applying this standard to the facts as found by the trial commissioner leads us to conclude that the trier’s conclusion must stand.

The trier’s finding as to the respondents’ direction to the claimant to do certain activities related to the felling of the trees can be viewed as supporting a conclusion that the claimant was an employee of the respondents at the time he sustained his various injuries.

Finally, we note that the respondents-appellants filed a Motion to Correct. Our review of the Motion to Correct indicates that the appellant failed to refer to specific portions of the evidence which supports the corrections the respondents sought. As we have noted on other occasions it is not the responsibility of the commissioner to cull out the pertinent parts of the record which support the corrections sought by the appellant. See, Horkheimer v. Stratford, 4 Conn. Workers’ Comp. Rev. Op. 139, 142, 163 CRD-4-82 (December 31, 1987) citing Sorrentino v. Cersosimo, 103 Conn. 426 (1925). See also, Capasso v. Fusco Corporation, 13 Conn. Workers’ Comp. Rev. Op. 30, 1622 CRB-3-93-1, 1920 CRB-3-93-11 (November 8, 1994). Thus, the factual finding of the trier must stand.

We therefore dismiss the respondents appeal and affirm the findings and conclusion of the trial commissioner.

Commissioners George Waldron and Robin L. Wilson concur.

1 For the record we note that after the respondents filed this appeal, the claimant filed a Motion To Correct. It appears that the claimant’s Motion to Correct referred to certain issues which were left open and unresolved by the trial commissioner in his March 21, 1995 Finding and Award. The trial commissioner, Commissioner John Arcudi, then rendered a subsequent decision. That subsequent decision, the September 7, 1995 Finding and Award, was not appealed. Thereafter Commissioner Roberta S. Tracy presided over proceedings concerning the obligations of the Second Injury Fund under the Workers’ Compensation Act as to this matter. Commissioner Tracy rendered a decision as to those matters in a January 19, 1996 Finding and Award. An appeal was taken from the January 19, 1996 Finding and Award and from Commissioner Tracy’s subsequent rulings after the January 19, 1996 Finding & Award. Those appeals are currently pending before this tribunal. See Thornton v. Kabel, Case No. 3258-CRB-4-96-1. BACK TO TEXT

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