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Merlin v. Labor Force of America, Inc. et al.

CASE NO. 3920 CRB-04-98-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 22, 1999

BRUCE MERLIN

CLAIMANT-APPELLEE

v.

LABOR FORCE OF AMERICA, INC.

EMPLOYER

and

UTICA MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

ROMAN SKOLOZDRA & ASSOCIATES

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Francis J. Ficarra, Esq., 1375 Kings Highway East, Suite 425, Fairfield, CT 06430.

The respondents Labor Force of America and Utica Mutual Insurance were represented by John Cassone, Esq., Avery & Crone, 25 Third Street, Stamford, CT 06905.

The respondent Roman Skolozdra & Associates was represented by James D. Moran, Jr., Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.

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

This Petition for Review from the October 20, 1998 Finding and Award of the Commissioner acting for the Fourth District was heard May 21, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondent Roman Skolozdra & Associates has petitioned for review from the October 20, 1998 Finding and Award of the Commissioner acting for the Fourth District. It argues on appeal that the trier erroneously found that it was the claimant’s employer, rather than the respondent Labor Force of America (LFA), an employment referral agency. As we find no impermissible exercise of discretion by the factfinder, we must affirm the commissioner’s decision.

There is no dispute that the claimant sustained a cervical injury on August 29, 1996 when he fell while helping the respondent, Roman Skolozdra, strip roof shingles. Skolozdra was a self-employed carpenter who had procured a home-improvement job at a private residence in Trumbull, and he had requested that the respondent LFA provide him with a laborer who could assist on the project. LFA sent the claimant to do the job, paying him $8.00 per hour based upon time sheets that Skolozdra and the claimant would sign and then submit to LFA.

Meanwhile, Skolozdra paid LFA $12.50 per hour for the claimant’s services. He controlled the claimant’s activities at the job site, including his employment hours, and provided all tools and equipment. There were no written contracts between LFA and either the claimant or Skolozdra, and Skolozdra did not maintain workers’ compensation insurance. When the claimant fell off the roof, Skolozdra hastily took him to the hospital for medical treatment, after calling the manager of LFA, who apparently agreed over the phone that LFA would pay all medical bills. Findings, ¶ 23. (However, Utica Mutual, the workers’ compensation insurer of LFA, claims that its policy covered only LFA’s in-house clerical workers.)

The trier found that the claimant was employed by Skolozdra, and not LFA, when he suffered his cervical injury. The commissioner did not rely upon Skolozdra’s stated belief that some of LFA’s $4.50 per hour profit was being applied to withholding taxes and insurance coverage, including coverage for workers’ compensation liability. See Transcript, p. 28-29. “LFA may well have told potential client(s) (employers) that they would carry insurance for the benefit of temporary help referred, i.e., the claimant herein, but with no contracts in writing and possibly no insurance in force, the determining factor is who has control and can direct the temporary help . . . .” Findings, ¶ D. The trier characterized LFA as a mere “registry for temporary employee hires to be sent out to work sites,” and rejected the notion that the claimant was an independent contractor, loaned employee,1 or a casual employee on August 29, 1996. Id., ¶ 22, F. He thus ordered Skolozdra to pay the claimant’s medical bills and disability benefits, from which decision Skolozdra appealed, along with the denial of his Motion to Correct.

In any workers’ compensation case, the trial commissioner is the finder of fact. He possesses the authority to evaluate the evidence presented by the parties, and the discretion to accept or disregard any portion of it, even if apparently uncontradicted. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board cannot reassess that evidence on appeal, and we will not disturb the trier’s findings unless they have no support in the record, or unless they fail to include undisputed material facts. Id. We also must preserve the trier’s legal conclusions unless they result from an incorrect application of the law to the facts, or an inference unreasonably drawn from them. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

According to the appellant, LFA has expressly admitted to being the claimant’s employer through uncontroverted statements made by its representatives and by written language found on the back of its time sheets. Skolozdra included references to each of these points in his Motion to Correct, and protests that it was erroneous for the commissioner to deny its requested corrections, as they would have changed the outcome of this case. Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). In reviewing the probable impact of these corrections, we are mindful not only of our standard of review for factual findings, but also of the law that an employment relationship is not conclusively established by the terminology that the parties use to describe their association. Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 288, 1720 CRB-4-93-5 (April 21, 1995). The existence of an employment relationship is a question of fact, and the key to its proof is the presence of authority in the putative employer to control the mode and manner in which the service is performed, as well as the means to be employed in its accomplishment. Id., 287-88, citing Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961); Hanson v. Transportation General, 245 Conn. 613, 617 (1998).

Three separate pieces of evidence are implicated by the Motion to Correct: the testimony of Roman Skolozdra regarding his dealings with LFA (February 9, 1998 Transcript, p. 38; May 4, 1998 Transcript, p. 38-41), the language on the back of LFA’s time sheets (see Claimant’s Exhibit C), and a letter written to the claimant by an LFA representative that refers to him as a “temporary worker for Labor Force.” Claimant’s Exhibit B. The trier addressed Skolozdra’s testimony in ¶ A of his award, correctly noting that the appellant’s “general understanding/interpretation of what he was paying LFA for when persons were sent out to work on his jobs is not dispositive of the within issue.” He was thus entitled to summarily deny the corrections that sought to reassess the impact of that testimony. Similarly, the trier was entitled to disregard the alleged admission of the LFA manager who stated that all of the claimant’s medical bills would be paid by LFA if Skolozdra took him in for treatment. Though that remark could have be indicative of an employment relationship, insofar as it suggests that LFA had a certain degree of control over the claimant’s whereabouts, the trial commissioner was not bound to interpret it in that manner, nor even to believe the testimony of the witness.

The trier also noted Skolozdra’s assertion that the back of the hourly time records enumerated LFA’s representation that an employer-employee relationship between the claimant and LFA existed “solely for the purpose of payroll taxes and employee benefits.” Findings, ¶ 12. Though such a proviso could, in fact, constitute a written agreement relevant to this case, and the trier might have placed significant weight on it, he evidently did not find it relevant to his ultimate decision here. On review, this board cannot declare that this language, as a matter of law, created an employment contract between the claimant and LFA. We are dismayed, however, by the apparent efforts of this temporary employment agency to attract customers by representing that it would assume responsibility for employee benefits, given its subsequent disavowal of any responsibility for the claimant’s injury. This is particularly true where, unlike Velez-Ramos v. Labor Force of America, 16 Conn. Workers’ Comp. Rev. Op. 119, 3070 CRB-4-95-5 (Nov. 25, 1996), the employee referral agency—and not the client—had a continuing relationship with the claimant. See February 9, 1998 Transcript, 7-8.

As for the letter from Gloria Stevens, an LFA manager, the trier never mentioned it in his findings at all, though it is clearly part of the record. Given the minor import of an LFA representative’s choice of words in referring to the claimant in subsequent correspondence between them, we do not doubt that the trier reviewed the letter, but deemed it irrelevant to his determination of the claimant’s employment status. By denying the Motion to Correct, the trier has essentially declared that Ms. Stevens’ offhand reference to the claimant as an “employee” does not constitute a waiver or admission of some kind by LFA. Again, the trier could have made a contrary decision that relied in part on this exhibit, but chose not to do so. As he did not abuse his discretion in weighing the credibility of the evidence, we cannot disturb his findings on review.

Accordingly, we must affirm the trial commissioner’s decision.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 We have stated that, in order for an individual to be deemed a “lent employee” under § 31-292, there must first be established an employer-employee relationship between the putative lender and the worker whom it has seen fit to lend. Velez-Ramos v. Labor Force of America, 16 Conn. Workers’ Comp. Rev. Op. 119, 121, 3070 CRB-4-95-5 (Nov. 25, 1996). BACK TO TEXT

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