State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Ogdon v. Treemasters, Inc.

CASE NO. 3071 CRB-4-95-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 20, 1996

DAVID OGDON

CLAIMANT-APPELLEE

v.

TREEMASTERS, INC.

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

INSURER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Carolyn Alexander Collins, Esq., Epstein, Fogarty, Cohen & Selby, 88 Field Point Road, Greenwich, CT 06830.

The respondent employer was represented by Douglas J. Lewis, Esq., Evans & Lewis, 93 Greenwood Ave., Bethel, CT 06801.

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

This Petition for Review from the May 23, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard June 14, 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 respondent employer has petitioned for review from the May 23, 1995 Finding and Award of the Commissioner acting for the Fourth District. In that decision, the trial commissioner found that the claimant suffered a compensable injury on October 6, 1992, when a felled tree was misdirected on its way to the ground and struck the unwary claimant while he was operating a woodchipper. The employer raises three basic arguments on appeal: the partial denial of its Motion to Correct, the commissioner’s finding that the claimant was an employee rather than an independent contractor, and the commissioner’s failure to find that the claimant was precluded from recovery in these proceedings due to his intoxication at the time of injury.

We keep in mind on review that the commissioner is the trier of fact, and that his impressions of the weight and credibility to give the evidence are binding. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 7071, 1859 CRB-5-93-9 (May 12, 1995). He only needs to include in the findings the “ultimate, relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties.” Id., citing Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). When considering the respondent’s proposed corrections, the commissioner must include all material and undisputed facts; however, where a requested correction would not affect the outcome of a case, it need not be included in the findings. Webb, supra, 71.

In the Finding and Award, the commissioner determined that the claimant had suffered a compensable injury. A further hearing was to be scheduled regarding the issue of benefits to which the claimant was entitled. Corrections relevant to the length of the claimant’s full-time employment and the amount of his wages were thus not material to the commissioner’s decision, and did not have to be included in the findings. The requested corrections concerning the noise level of the woodchipper at the time of the accident, the claimant’s sobriety at the time of the accident, and the preventability of the incident were completely factual issues for the trial commissioner to resolve, and we would be remiss if we were to question his interpretation of the evidence regarding those issues. Similarly, the facts that the claimant did not seek unemployment benefits during the time prior to the accident, and that the respondent did not withhold deductions from his pay, are not necessarily material to a commissioner’s decision regarding employment status. Phelan v. Soda Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 53, 54-55, 1583 CRB-3-92-12 (Dec. 20, 1994). We thus find no error in the denial of the Motion to Correct.

The commissioner ’s conclusion that the claimant was an employee of the respondent was supported by sufficient evidence. The key issue in such a determination is the right of the employer to control the mode and manner in which the claimant performs his services. Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961). Here, the commissioner found that the employer, not the claimant, had control over the work environment and the hours of the claimant’s employment, and that it owned the tree removal equipment. The claimant “was told what brush to chip and when to chip it.” These facts are perfectly consistent with the legal conclusion that the claimant was an employee rather than an independent contractor; the existence of other facts regarding the details of the claimant’s payment did not require a contrary outcome. See Phelan, supra; Carrier v. Voisine, 2093 CRB-3-94-7 (decided Jan. 11, 1996).

Finally, the applicability of § 31-284(a)’s prohibition of compensation “when the personal injury has been caused by the willful and serious misconduct of the injured employee or by his intoxication” is an affirmative defense that the employer must establish to avoid liability for a claim. Federchuck v. UTC/Pratt & Whitney, 2298 CRB-2-95-2 (decided Sept. 16, 1996). The commissioner specifically found that the respondent had failed to present credible evidence that the claimant was intoxicated at the time of the accident, or that his consumption of “a couple cans of beer” on the morning of the incident caused the tree to fall on him. Although the evidence does show that the claimant had consumed some alcohol that morning, there is simply nowhere near enough evidence in the record to establish either prong of the intoxication defense (i.e. the intoxication itself, and its causal relationship to the accident) as a matter of law. There was no evidence that the claimant was actually affected by the moderate amount of liquor in his system, and there was testimony that the noise of the woodchipper, not the claimant’s alleged intoxication, prevented him from hearing the warning cries of his co-workers when the tree fell. Thus, the commissioner’s conclusion concerning this issue also must stand.

The trial commissioner’s Finding and Award is affirmed.

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

Workers’ Compensation Commission

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