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Altieri v. R & M Builders

CASE NO. 3647 CRB-05-97-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 18, 1998

GENE ALTIERI

CLAIMANT-APPELLANT

v.

R & M BUILDERS

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Penn Rhodeen, Esq., 278 Orange Street, New Haven, CT 06510.

R & M Builders was represented by Nicholas A. D’Agosto, Esq., Robert C. Souca & Associates, 375 Bridgeport Avenue, P.O. Drawer 805, Shelton, CT 06484.

The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120, who did not appear at oral argument.

The Petition for Review from the July 9, 1997 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 29, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 9, 1997 Finding and Dismissal of the Commissioner acting for the Fifth District. In that decision, the trial commissioner concluded that the claimant was an independent contractor rather than an employee of the respondent employer, and thus was not entitled to benefits under the Workers’ Compensation Act. On appeal, the claimant contends the undisputed facts support a determination that the claimant was an employee of the respondent employer rather than an independent contractor. We affirm the trial commissioner.

The trial commissioner found the following relevant facts. The claimant injured his thumb on March 3, 1995 while using his own saw at a work site in Oxford. At the commencement of the business relationship between the claimant and R & M Builders, the claimant presented a business card which states “Gene Altieri Construction” and indicates that the claimant is fully insured and licensed. The claimant carried his own liability insurance. The claimant had a home improvement contractor license under the name “Gene Altieri Construction” effective from April 1, 1994 through June 1, 1995. R & M Builders did not pay the claimant for holidays, vacation, or overtime. The claimant was given a 1099 tax form, and no taxes were withheld. The claimant kept track of his own hours. Moreover, the trial commissioner found that the claimant “was given a blueprint and left to perform his job activities at his own pace.” (Finding No. 10). Furthermore, the trial commissioner found that the claimant “maintained control over his work product.” (Finding No. 11). The commissioner concluded that the claimant was an independent contractor and thus dismissed the claim.

In Hanson v. Transportation General, Inc., 45 Conn. App. 441, 446, (1997), aff’d., 245 Conn. 613 (1998), the court explained:

Our courts have long recognized that independent contractors are not within the coverage of the Workers’ Compensation Act. . . . The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact. . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.
Hanson, supra, 45 Conn. App. at 446, quoting Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16, 19-20, cert. denied, 227 Conn. 919 (1993).

In support of his appeal, the claimant contends that the subordinate findings of fact do not support the trial commissioner’s conclusion that the claimant’s work was not under the control of R & M Builders. We disagree, as we conclude that the facts found by the commissioner fully support the conclusion. In the instant case, the trial commissioner found that the claimant performed his job activities at his own pace; maintained control over his work product; used many of his own tools; held himself out as a fully insured home improvement contractor; and was given a 1099 form instead of a W2-W4 form.

“We may not disturb the commissioner’s conclusions which are dependent on the weight and credibility accorded the evidence. It is the trial commissioner, as the trier of facts, who determines with finality the credibility of the witnesses and the weight to be accorded their testimony.” Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 349, 1675 CRB-2-93-3 (July 29, 1994), see also Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36,44 (1996). In the instant case, the trial commissioner’s determination that the claimant was an independent contractor rather than an employee is amply supported by the evidence and was neither based on impermissible or unreasonable factual inferences nor contrary to law. Accordingly, it must stand. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, a trial commissioner need not “patently state every piece of credible evidence or testimony that contributed to the rendering of her decision.” Keenan v. Union Camp Corp., 49 Conn. App. 280, 285 (1998).

We agree with the claimant’s contention that the mere labeling of the employment relationship as an independent contractor by the parties may not prevent a trial commissioner from finding that the claimant is in fact an employee based upon the actual work relationship. See Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 1720 CRB-4-93-5 (April 21, 1995). However, in the instant case the trial commissioner made sufficient findings to support the conclusion that the employer did not have the right to control the means and methods of the claimant’s work, and that conclusion is fully supported by the record. Moreover, the Appellate Court has cited factors such as the claimant’s holding “himself out as an independent contractor, using a separate letterhead and doing business under various firm names” in the determination of whether an employee is an independent contractor. Chute, supra, at 21-21.

In further support of his appeal, the claimant contends that the trial commissioner improperly denied his motion to correct. Specifically, the claimant contends that his motion to correct included undisputed facts which show that the employer had the right to control the method of the claimant’s work. We disagree. The claimant’s requested findings, including that the employer (1) told the claimant which work site to report to; (2) required the claimant to use a certain method of installing a door, and (3) provided the claimant with some of the larger tools such as ladders and scaffolding, would not alter the trial commissioner’s decision. On review of the denial of a Motion to Correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion to Correct also may be denied properly where the legal conclusion of the commissioner would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). As the claimant’s requested substituted findings would not alter the commissioner’s conclusion, we find no error in the commissioner’s denial of the claimant’s motion to correct.

The trial commissioner’s decision is affirmed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

Workers’ Compensation Commission

Page last revised: June 29, 2005

Page URL: http://wcc.state.ct.us/crb/1998/3647crb.htm

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