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Velez-Ramos v. Labor Force of America et al.

CASE NO. 3070 CRB-4-95-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 25, 1996

MIGUEL VELEZ-RAMOS

CLAIMANT-APPELLEE

v.

LABOR FORCE OF AMERICA

EMPLOYER

RESPONDENT-APPELLEE

and

CONTRACT PLATING CO.

EMPLOYER

and

MARYLAND INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to William Hennessey, Esq., 49 Cannon St., Suite 204, Bridgeport, CT 06604.

The respondent Labor Force of America was represented by Michael Parizo, Esq., 554 Boston Post Road, Unit B3, Milford, CT 06460.

The respondents Contract Plating Co. and Maryland Insurance Group were represented by Louis George, Esq. and Ray Hassett, Esq., Hassett, George & Siegel, P.C., 567 Franklin Ave., Hartford, CT 06114.

This Petition for Review from the May 23, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard May 10, 1996 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Robin L. Wilson and Michael S. Miles.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The respondents Contract Plating Co. and Maryland Insurance Group have petitioned for review from the May 23, 1995 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the commissioner improperly concluded that the claimant was an employee of Contract Plating Co. rather than the respondent Labor Force of America (LFA). After reviewing the parties’ arguments thoroughly, we affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to his right leg and foot on November 1, 1993, while performing services for Contract Plating. He had gone to Contract Plating in September 1993 seeking employment, and filled out an application with the Stratford plant. A week later, he was told to report to work there. Once the claimant came to work, his actions were directed by an employee of the plant, and he reported his hours of work by signing a time slip presented to him each week by a Contract Plating employee. The claimant would then receive a check in the mail from the respondent LFA as payment for his work. Whenever Contract Plating needed temporary employees, it would request LFA to furnish them. However, the only contact that the claimant personally had with LFA was the weekly paycheck he received from it in the mail (from which LFA deducted withholding and FICA contributions). All of the claimant’s work activities were controlled by Contract Plating, with no input from LFA.

Contract Plating argued that the claimant was a lent employee under § 31-292 C.G.S., and that LFA was accordingly responsible for his workers’ compensation benefits. However, the commissioner found that there was never a “contract of service” as required by that statute between LFA and the claimant. Instead, the contract really existed between the claimant and Contract Plating, with LFA performing payroll services for the plant’s temporary employees, and making its profit by paying the employees less than Contract Plating paid LFA for the use of their services. Thus, the commissioner found that Contract Plating was the claimant’s employer, and that it was responsible for the claimant’s workers’ compensation benefits. Contract Plating and its insurer have appealed that decision, along with the denial of their Motion to Correct.

We begin by noting that the appellants’ requested corrections were either disputed issues of fact or law (e.g. which party the claimant had contracted with, and who told him to report to work) or minor details that were merely omitted from the decision, and that would not affect the outcome of this case (e.g. the amount of LFA’s profit from the claimant’s services). Thus, the trial commissioner did not err by denying those corrections. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). This plays only a small part in our consideration of this appeal, however, as the parties substantially agree on the facts. The real dispute centers around the legal import of those facts in identifying the claimant’s employer for purposes of the Workers’ Compensation Act. The appellant contends that the trial commissioner should have applied the “lent employee” statute to this case,1 while the appellee argues that the claimant was not an “employee” of LFA within the meaning of § 31-275(9) due to the absence of a contract.2

In order for the appellant to succeed in its argument that LFA lent the claimant’s services to Contract Plating within the meaning of § 31-292, it must first establish that there was an employment relationship between the claimant and LFA. Minuit v. P.D.F. Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 1, 4, 1551 CRB-3-92-11 (Oct. 7, 1994). We have often stated that the key factor in establishing an employment relationship is the presence of authority in the alleged employer to control how and when the alleged employee performs his work. Nelson v. Deb’s Inc., 2228 CRB-3-94-12 (decided June 20, 1996), citing Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961). The appellant’s argument that a direction and control analysis was unnecessary fails to recognize that a preexisting employment relationship between the claimant and LFA was not admitted in this case, unlike the fact pattern in Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 641 (1936), where such a relationship was presupposed by the parties. See also Halliday v. Daw’s Critical Care, 10 Conn. Workers’ Comp. Rev. Op. 187, 189, 1196 CRD-7-91-3 (Sept. 14, 1992) (claimant was considered employee of convalescent home rather than staffing agency based on hospital’s right to direct and supervise work activities).

Here, the commissioner specifically found that there was never a “contract of service” between LFA and the claimant, and that § 31-292 consequently did not apply. In his findings, the only connection that the commissioner drew between the claimant and LFA was that the latter mailed him his paychecks, in accordance with an agreement between Contract Plating and LFA. The claimant testified that he sought employment directly with Contract Plating by going to their office and asking for a job, and that he had no personal contact with LFA prior to or during his employment with Contract Plating. (July 21, 1994 Transcript, p. 12-21). His testimony suggests that he was unaware of any relationship whatsoever with LFA, other than the presence of its company name on his paychecks. It is also undisputed that Contract Plating employees directed the claimant in the actual performance of his work without consulting with LFA.

This evidence sufficiently supports the trial commissioner’s finding that there was no contract between the claimant and LFA, and we may not disturb that finding on appeal. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This board is not oblivious to the prevalence of temporary employment agencies and payroll services in today’s economy, and the potential impact they have on the rights of workers. However, policy considerations are not the basis of our decision; nor would we presume that all of these agencies are alike, and that they offer the same services. Simply put, it was acceptable in this case for the commissioner to find that LFA did nothing more than perform payroll servicing for Contract Plating vis-à-vis the claimant, and that this did not amount to an employment relationship. Accordingly, the trial commissioner’s decision is affirmed.

Commissioners Robin L. Wilson and Michael S. Miles concur.

1 Section 31-292 states that “[w]hen the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hired by another.” BACK TO TEXT

2 Specifically, the appellee LFA refers to § 31-275(9)(A)(i), which defines an employee as “any person who . . . [h]as entered into or works under any contract of service or apprenticeship with an employer, whether the contract contemplated the performance of duties within or without the state.” BACK TO TEXT

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