CASE NO. 4019 CRB-01-99-04
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 18, 2000
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by William W. Fisher, Jr., Esq., 383 Route 32, Franklin, CT 06254, who did not appear at oral argument.
The respondent employer represented himself at the trial level, and did not appear at oral argument.
The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the March 25, 1999 Finding and Dismissal of the Commissioner acting for the First District was heard November 19, 1999 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Stephen B. Delaney.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the March 25, 1999 Finding and Dismissal of the Commissioner acting for the First District. In that decision the trial commissioner found that the claimant was an independent contractor rather than an employee, and thus was not covered under the Workers’ Compensation Act. Additionally, the trial commissioner found that the claimant’s injury, a fall from a roof, was caused by his intoxication. In support of his appeal, the claimant contends that the trial commissioner erred in finding the respondent’s testimony to be more credible than the claimant’s testimony.
Initially, we note that the Second Injury Fund filed a Motion to Dismiss the claimant’s appeal for failure to prosecute with due diligence. The board, in its discretion under Practice Book § 85-1, denied that motion during oral argument and chose to consider the merits of the claimant’s appeal.
The trial commissioner found that on June 17, 1997, the claimant fell from the roof of a dwelling located on Magnolia Street in Hartford, Connecticut. At the time of the accident, the dwelling was being repaired by Willie Jameson (“respondent”). The claimant testified that he had worked “off and on” for the respondent for years, and that whenever the respondent needed a carpenter and he was available, he would work for the respondent. (Finding ¶ 6 and 7). The respondent testified that the claimant was paid by the job rather than by the hour. The respondent further testified that the claimant was an experienced carpenter, that the respondent had no knowledge of roofing, and that the claimant worked independently at the Magnolia Street project. The trial commissioner found that the claimant used his own tools, and took other jobs when he was not working for the respondent. The trial commissioner concluded that the claimant was an independent contractor rather than an employee.
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 claimant’s testimony, which indicated that he was paid by the hour and that his work was strictly controlled by the respondent, was more credible than the respondent’s testimony. The claimant is essentially seeking to retry the facts of this case, which this board may not do. It was within the discretion of the trial commissioner, as the trier of fact, to assess the credibility of all of the evidence, and to find the testimony of the respondent to be more credible than that of the claimant. When reviewing a trial commissioner’s decision, it is well established that this board “is obligated to hear the appeal on the record and not retry the facts .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999) (quotations omitted).
“In reviewing the factual determinations of the commissioner, the [board’s] scope of review is limited. The [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted). “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it .” Id. at 349 (citations omitted). In the instant case, the evidence in the record fully supports the trial commissioner’s findings and his conclusion that the claimant was acting as an independent contractor rather than an employee.
We agree with the claimant’s contention that in light of the trial commissioner’s conclusion that the claimant was an independent contractor, whether the claimant was intoxicated at the time of his accident is not material. However, we do not agree with the claimant’s argument that by finding that the claimant was intoxicated, the trial commissioner “conceded” that the claimant was an employee.
The trial commissioner’s decision is affirmed.
Commissioners George A. Waldron and Stephen B. Delaney concur.