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Nadeau v. J.H. Scelza, Inc.

CASE NO. 3903 CRB-06-98-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 13, 2000

EMMANUEL NADEAU

CLAIMANT-APPELLEE

v.

J.H. SCELZA, INC.

EMPLOYER

and

HARTFORD ITT INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by David Beizer, Esq., Beizer & Weintraub, 345 North Main Street, West Hartford, CT 06117.

The respondents were represented by Joseph Skelly, Esq., Edward M. Henfey & Associates, 55 Farmington Ave., Hartford, CT 06105.

The Petition for Review from the September 17, 1998 Finding and Award of the Commissioner acting for the Sixth District was heard June 18, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and John A. Mastropietro.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondents have petitioned for review from the September 17, 1998 Finding and Award of the Commissioner acting for the Sixth District. In that decision the trial commissioner concluded that the claimant was acting as an employee of the respondent employer rather than an independent contractor at the time of his accident, and thus was entitled to benefits under the Workers’ Compensation Act. In support of their appeal, the respondents contend that the claimant was acting as an independent contractor at the time of the accident.

The trial commissioner found the following relevant facts. The claimant has been engaged in the vinyl siding business operating under the name of Emmanuel Nadeau Siding for approximately twelve years. The claimant’s company, Emmanuel Nadeau Siding, was issued an insurance policy covering August 3, 1997 through August 3, 1998, under which the claimant was excluded from coverage. J.H. Scelza, Inc. is a building company that acted as a general contractor constructing a residential neighborhood in 1997. On August 7, 1997, and for some period prior thereto, the claimant entered into an agreement with the respondent J.H. Scelza, Inc., to install vinyl siding on new homes

The trial commissioner found that for the purposes of installation of vinyl siding, the claimant was a subcontractor, and was paid per the square foot of siding installation, worked at his own pace, submitted an invoice at the end of each job, and had no taxes or social security withheld from his pay. In contrast, the trial commissioner found that when the claimant was asked to assist with the removal of a window on August 7, 1997, he was acting outside of the scope of his work as a siding subcontractor. Specifically, on August 7, 1997, William DeMila, the job superintendent for J.H. Scelza, Inc., requested the claimant to assist him in the removal and installation of a window. The claimant was injured when he fell as he walked across the yard carrying a ladder which was to be used for said window. Just prior to the accident, the claimant was performing siding work across the street and was on a coffee break when he was asked to help with the window.

In support of their appeal, the respondents contend that the claimant’s injury should not be compensable because the claimant was an independent contractor and had specifically chosen to exclude himself from coverage as a sole proprietor under his own workers’ compensation insurance policy. Section 31-275(10) states that a sole proprietor “may accept the provisions of this chapter by notifying the workers’ compensation commissioner having jurisdiction, in writing, of his intent to do so.” The statute does not presume that a sole proprietor needs workers’ compensation insurance; rather, he must opt into the Act by following a prescribed course of action. See Marandino v. Marandino’s, 3130 CRB-6-95-7 (June 4, 1996). Accordingly, we have held that an injury is not compensable where the claimant was self-employed as a sole proprietor when he was injured. Covillion v. Plante Brothers, Inc., 3364 CRB-7-96-6 (Dec. 11, 1997), aff’d., 51 Conn. App. 901 (1998)(per curiam).

Unlike the facts in Marandino, supra, and Covillion, supra, in the instant case the trial commissioner specifically found that the claimant was injured while he was assisting in the removal of a window, a project which was outside the scope of his vinyl siding business. Specifically, the trial commissioner found that the claimant was acting under the direction and control of J.H. Scelza, Inc. regarding the removal of the window. Moreover, the trial commissioner found that the claimant would be paid on an hourly basis for this project. (Finding ¶ 14, 16 and D; see also 3/17/98 TR. at 40).

It has repeatedly been held that 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….” Hanson v. Transportation General, Inc., 45 Conn. App. 441, 446, (1997), aff’d., 245 Conn. 613 (1998). Moreover, “(t)he 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, (1993), cert. denied, 227 Conn. 919 (1993).

In the instant case, the trial commissioner’s determination that the claimant was acting outside the scope of his duties as a siding subcontractor when he was injured on August 7, 1997 is fully supported by the findings and by the record. Moreover, the trial commissioner’s determination that the claimant was acting as an employee of J.H. Scelza, Inc. 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).

Finally, we will address the respondents’ argument on appeal that the claimant was “loaned” to J.H. Scelza, Inc. for the window project within the meaning of § 31-292.1 Under § 31-292, “liability is in all cases imposed upon an employer who has ‘temporarily lent or let on hire’ to another the services of one of his employees.” Minuit v. P.D.F. Construction Co., 16 Conn. Workers’ Comp. Rev. Op. 133, 135, 3145 CRB-3-95-7 (November 26, 1996), citing Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640, 644 (1936). As the facts as found by the trial commissioner do not indicate that the claimant had been an “employee” of Emmanuel Nadeau Siding prior to his temporary employment with the respondent on August 7, 1997, § 31-292 may not apply.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and John A. Mastropietro concur.

1 General Statutes § 31-292 provides: “When the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hired by another.” BACK TO TEXT

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