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Spiwak v. Daniel Gassner d/b/a DGC et al.

CASE NO. 3760 CRB-04-98-01

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 5, 1999

JOHN D. SPIWAK

CLAIMANT-APPELLANT

v.

DANIEL GASSNER d/b/a DGC

EMPLOYER

NO RECORD OF INSURANCE

and

PETER GUIMARAES d/b/a GUIMARAES DEVELOPMENT

EMPLOYER

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by John McKenna, Esq., Goodman, Rosenthal & McKenna, P.C., 68 South Main Street, West Hartford, CT 06107-2445.

Daniel Gassner d/b/a DGC was represented by James Quinn, Esq., Furniss & Quinn, 248 Hudson Street, Hartford, CT 06106.

Peter Guimaraes d/b/a Guimaraes Development was represented at the trial level by Henry C. Ide, Esq., Attorney at Law, Old Avon Village, 29 West Main Street, Avon, CT 06001, and subsequently was granted his motion to withdraw as counsel.

The Second Injury Fund was represented by Michael Giamatteo, 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 January 2, 1998 Finding and Dismissal of the Commissioner acting for the Eighth District was heard September 18, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 2, 1998 Finding and Dismissal of the Commissioner acting for the Eighth District. In that decision the trial commissioner concluded that at the time of his injury the claimant was an independent contractor rather than an employee, and thus was not entitled to benefits under the Workers’ Compensation Act. On appeal, the claimant contends that the trial commissioner’s conclusion that the claimant acted as an independent contractor is not supported by the record. The claimant further contends that once the trial commissioner concluded that the claimant was an independent contractor rather than an employee, he should not have reached the issue of whether the claimant’s conduct at the time of the injury constituted willful and serious misconduct.

The trial commissioner found the following relevant facts. The claimant was injured on November 29, 19951 while performing a roofing job at a residential construction site in Killingworth when he slipped off the roof. The claimant and his brother, during the late winter of 1994, were retained by Daniel Gassner d/b/a DGC to work as framers in the construction of new residential buildings. When the claimant and his brother were hired by Gassner, they were told that they would be acting as subcontractors and that they would have to purchase their own general liability insurance. The claimant and his brother did obtain such insurance, advising the insurance agency that they were acting as partners and were working as subcontractors on new home construction. The claimant and his brother used their own tools in their work as framers and roofers. After initially helping Gassner and his crew on roofing jobs, the claimant and his brother commenced doing roofing work by themselves. The claimant was paid for roofing “by the square” rather than by the hour, while for framing work the claimant was paid by the hour.

Daniel Gassner d/b/a DGC primarily installed framing for new houses, with a major percentage of subcontractor work performed on the Guimaraes Development sites. Guimaraes Development and Daniel Gassner d/b/a DGC had a working relationship since the early 1990’s. Gassner was instrumental in having the claimant and his brother obtain roofing jobs at Guimaraes Development work sites. However, Gassner “had no direct involvement with the claimant and his brother’s roof installation jobs other than work done on the Guimaraes Development sites for roofing was paid through the DGC books.” (Finding No. 32; see also Finding No. 69). Neither DGC nor Guimaraes ever withheld taxes or filed 1099 forms for the claimant.

The trial commissioner found that “(t)he claimant and his brother had no direction on when and how to install roofing materials....” (Finding No. 34). Moreover, the claimant was known to “come and go” from job sites at his own will, including on the date of his injury. (Finding No. 48). On the morning of November 29, 1995, the claimant drove to a Killingworth job site where he attempted to shovel snow off the roof and nearly fell off the roof himself. The claimant left the job site, and when he returned that same morning he was warned by other subcontractors against attempting to resume shoveling snow off the roof. The claimant nevertheless climbed onto the roof and slipped on ice, falling off the roof onto a cement mixer. After the claimant’s injury, Guimaraes Development hired someone else to complete the roofing job.

The commissioner concluded that the claimant was an independent contractor and thus dismissed the claim. Moreover, the trial commissioner found that the claimant was performing roofing work directly for the general contractor, Guimaraes Development, notwithstanding the fact that he was being paid by the subcontractor, Daniel Gassner d/b/a DGC.

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 are not supported by the record. We disagree, as we conclude that the facts found by the commissioner are fully supported by the record. Moreover, because no Motion to Correct was filed, this Board is limited on appeal to the findings present in the commissioner’s decision. See Admin. Reg. § 31-301-4; Vanzant v. Hall, 219 Conn. 674, 679-80 (1991); see also Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). In the instant case, the trial commissioner found that the claimant performed his job without direction from Gassner or Guimaraes Development; that no taxes were withheld from his pay; that he would come and go at will from job sites; and that he used his own tools.

“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).

In further support of his appeal, the claimant contends that after having determined that the claimant was an independent contractor, the trial commissioner should not have addressed the issue of whether the claimant’s conduct constituted willful and serious misconduct. Specifically, the trial commissioner found that the claimant’s second attempt to enter upon the roof after having fallen during his first attempt and after warnings from fellow subcontractors, constituted willful and reckless misconduct considering the snow and ice conditions on the roof. We note that the trial commissioner found that when brought to the hospital on the day of his accident, the claimant was found to have residue from cocaine in his system. However, the trial commissioner made no findings linking the results of the drug testing to the cause of the claimant’s injury.We agree with the claimant’s contention that the trial commissioner did not legally need to reach the issue of willful misconduct after having found that the claimant was an independent contractor. However, we find no legal error in the trial commissioner’s decision to address willful misconduct, nor in his analysis of that issue.

The trial commissioner’s decision is affirmed.

Commissioners Michael S. Miles and Stephen B. Delaney concur.

1 We note that both the claimant and the respondents state the date of injury as November 30, 1995 rather than November 29, 1995. We further note that there was no Motion to Correct filed in this case. We conclude that the trial commissioner’s use of November 29, 1995, which is apparently an error, constitutes at most a harmless error. BACK TO TEXT

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