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Palaez v. Richard A. Nau

CASE NO. 3905 CRB-07-98-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 3, 1999

JOSE PALAEZ

CLAIMANT-APPELLEE

v.

RICHARD A. NAU

EMPLOYER-APPELLANT

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by John Lacava, Esq., Barr & Lacava, 22 Fifth Street, New Haven, CT 06510.

Richard Nau was represented by Maureen Driscoll, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.

The Second Injury Fund was represented by William McCullough, 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 September 3, 1998 Finding and Award of the Commissioner acting for the Seventh District was heard March 26, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Stephen B. Delaney and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the September 3, 1998 Finding and Award of the Commissioner acting for the Seventh District. In that decision the trial commissioner concluded that the claimant was an employee of the respondent employer rather than an independent contractor, and thus was entitled to benefits under the Workers’ Compensation Act. In support of its appeal, the respondent contends that the undisputed facts support a determination that the claimant was not an employee of the respondent employer but rather was an independent contractor. We affirm the trial commissioner.

The trial commissioner found the following relevant facts. The respondent conducted business activities under the name Richard A. Nau d/b/a Nau Excavating, in and around Stamford, Connecticut. The respondent’s work consisted of excavation and tree work, and also lawn cutting, stone masonry, construction, and yard clean-up work. The respondent kept several vehicles and equipment at his grandfather’s gas station in Stamford. The claimant began rendering services to the respondent in March of 1995. The claimant rendered services to the respondent on a daily basis, and was paid $12.00 per hour for an approximate eight hour work day, six days per week. In performing his duties, the claimant used tools belonging to the respondent. Sometimes the respondent drove the claimant to the work site and, while there, told the claimant what to do and supervised and inspected his work.

On June 23, 1995, the claimant, at the direction of the respondent, was performing clean-up work at a site in New York. The respondent provided the claimant with the tools, including a wheelbarrow and a chain saw. The respondent instructed the claimant to then return to the gas station in Stamford, where the respondent kept his vehicles and equipment, in order to work on a diesel fuel tank. At approximately 4:00 p.m. on June 23, 1995, the claimant finished his work at the New York site and began travelling to the gas station in Stamford as directed by the respondent. While en route to Stamford, the claimant was injured as the result of an automobile accident in Stamford. The trial commissioner found that the respondent directed and controlled the activities of the claimant in that he directed and supervised his work.

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).

“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 specifically found the testimony of the claimant to be more credible than that of the respondent. The trial commissioner’s determination that the claimant was an employee rather than an independent contractor 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 support of its appeal, the respondent contends that the “undisputed” and material facts do not support the trial commissioner’s conclusion that the claimant worked as an employee of the respondent. Specifically, the respondent contends that the trial commissioner erred in denying his Motion to Correct in order to indicate that the claimant had a right to refuse work; that the claimant was also working for another employer during the period at issue; that the claimant kept some tools at his own residence; and that a witness (Michael Juarez) testified1 that the claimant was on his way to the airport for personal reasons at the time of the accident. The requested findings would not alter the trial commissioner’s conclusion that the respondent had the right to control the means and methods of the claimant’s work. Accordingly, we find no error in the commissioner’s denial of the claimant’s Motion to Correct. See Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).

The trial commissioner’s decision is affirmed.

Commissioners Stephen B. Delaney concur and John A. Mastropietro.

1 We have consistently held that 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) (citations omitted). Moreover, a trial commissioner has the “right to reject testimony even if seemingly uncontradicted.” Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996). In the instant case, the respondent contends that Juarez’s testimony was uncontradicted, however, the record clearly indicates otherwise as the claimant testified that he was driving to the gas station in Stamford to perform work for the respondent. (4/28/98 TR. at 66-67). BACK TO TEXT

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