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Stalker v. City of Derby et al.

CASE NO. 4093 CRB-04-99-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 10, 2000

SHEILA A. STALKER

CLAIMANT-APPELLANT

v.

CITY OF DERBY

EMPLOYER

and

MATHOG & MONIELLO

INSURER

and

CONNECTICUT POST

EMPLOYER

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Daniel Skuret, III, Esq., 215 Division Street, P.O. Box 158, Ansonia, CT 06401.

The respondents City of Derby and Mathog & Moniello were represented by Robert J. Enright, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon CT 06066.

The respondent Connecticut Post was represented by Margaret McGrail, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The Second Injury Fund was represented by Mee Carolyn Wong, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120, who did not file a brief or appear at oral argument.

This Petition for Review from the July 20, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District was heard March 10, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the July 20, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District. In that decision the trial commissioner concluded that the concurrent wage benefits provided under § 31-310 did not apply to the claimant’s concurrent employment with the Connecticut Post because the claimant was acting as an independent contractor rather than an employee of the Connecticut Post. The claimant argues on appeal that she was an employee of the Connecticut Post rather than an independent contractor, and further argues that even if she was an independent contractor, her earnings should be included as concurrent employment under § 31-310.

The trial commissioner found that on November 20, 1996, the claimant suffered a compensable back injury while working on a part-time basis for the respondent City of Derby. The claimant contended that on November 20, 1996, she was also an employee of the Connecticut Post, and therefore requested concurrent employment benefits under § 31-310. The trial commissioner concluded that the claimant was an independent contractor rather than an employee of the Connecticut Post, and thus held that the concurrent employment benefits provision of § 31-310 did not apply. We agree.

Section 31-310(a) provides in relevant part:

For the purposes of this chapter, the average weekly wage shall be ascertained by dividing the total wages received by the injured employee from the employer in whose service he is injured during the fifty-two calendar weeks immediately preceding the week during which he was injured, by the number of calendar weeks during which, or any portion of which, the employee was actually employed by the employer . . . . Where the injured employee has worked for more than one employer as of the date of the injury and the average weekly wage received from the employer in whose employ he was injured, as determined under the provisions of this section, are insufficient for him to obtain the maximum weekly compensation rate from the employer under section 31-309, prevailing as of the date of the injury, his average weekly wages shall be calculated upon the basis of wages earned from all such employers in the period of concurrent employment not in excess of fifty-two weeks prior to the date of the injury….

We begin our analysis by restating the basic tenet that “the existence of an employee-employer relationship is a jurisdictional fact that must be shown in order to proceed with a claim for workers’ compensation benefits.” Trinkley v. Ella Grasso Regional Center, 220 Conn. 739, 744 (1992), quoting Castro v. Viera, 207 Conn. 420, 427-35 (1988) (emphasis added). “The Workers’ Compensation Act (act), General Statutes § 31-275 et. seq., provides benefits only for those workers who have the status of ‘employees’ at the time of their injury.” Hanson v. Transportation General, Inc., 245 Conn. 613, 615 (1998) (emphasis added). Thus, in construing the concurrent employment provision of § 31-310, it has repeatedly been held that the claimant must have an employee-employer relationship both in the employment where the injury occurred and in the concurrent employment. See Going v. Cromwell Fire District, 159 Conn. 53 (1970); Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (Jan. 8, 1999); Lemieux v. General Dynamics, 14 Conn. Workers’ Comp. Rev. Op. 383, 2077 CRB-2-94-6 (October 5, 1995).

In Going v. Cromwell Fire District, 159 Conn. 53 (1970), the court held that an injured volunteer fire fighter does not come within the terms of the concurrent employment provisions of § 31-310. The court concluded that volunteer firefighters are not “employees” of the municipality for purposes of the “more than one employer” requirement of § 31-310. Id. at 58-59. In Heene, supra, the board held that the claimant’s cleaning business, a sole proprietorship, could not be considered concurrent employment for the purposes of § 31-310. In Lemieux, supra, the board rejected the claimant’s argument that his earnings as a member of the Connecticut National Guard constituted concurrent employment benefits under § 31-310. The board explained that because § 27-67 grants authority over workers’ compensation claims of members of Connecticut armed forces to the adjutant general, therefore the state is not an “employer” under § 31-275 as this commission does not have jurisdiction over said claims.

Similarly, in the instant case, the claimant was found not to be an employee of the Connecticut Post, and thus the “more than one employer” requirement of § 31-310 was not satisfied. The conclusion that an independent contractor relationship does not constitute concurrent employment is consistent with a plain reading of the statute, which refers to an “injured employee” who “has worked for more than one employer.” Moreover, we note that if the claimant had been injured while performing her duties for the Connecticut Post, as an independent contractor she would not be entitled to any benefits under the Workers’ Compensation Act. Hanson, supra. Thus, it is reasonable to conclude that earnings from said independent contractor position should not be added to the claimant’s benefit rate as concurrent employment under § 31-310.

We now turn to the claimant’s argument that she was an employee of the Connecticut Post rather than an independent contractor. 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); see also Murray v. Black Tie Limousine, 3899 CRB-3-98-9 (Nov. 4, 1999) Johnson v. Braun Moving, Inc., 3861 CRB-7-98-7 (Nov. 2, 1999), and Palaez v. Richard A. Nau, 3905 CRB-7-98-9 (June 3, 1999).

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).

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 findings of fact. Specifically, the trial commissioner found that the claimant was obligated to pick up the newspapers between 1:00 A.M. and 5:00 A.M. with delivery to be made by 6:00 A.M.; the claimant determined the order of delivery to subscribers; the claimant assumed all responsibility for her route after five days of training; the decisions as to who, when and how to deliver the newspapers were essentially up to the claimant; the claimant could enlist others to perform her duties, and she did enlist her husband following her injury; the claimant drove alone using her own car and was “essentially on her own” (Finding ¶ 15); the claimant was responsible for all expenses with no reimbursement from the Connecticut Post; the Connecticut Post did not withhold taxes and provided the claimant with a Form 1099; and the claimant was required to supply her own liability insurance, which she did (Finding ¶ 8 and 19-20). As the findings of fact, which are fully supported by the record, amply support the trial commissioner’s determination that the claimant was acting as an independent contractor, we may not overturn this determination. O’Reilly, supra.

In further support of her appeal, the claimant contends that the trial commissioner erred in admitting the claimant’s contract with the Connecticut Post into evidence. The respondent employer submitted an original copy of the contract, which was signed by the claimant. We find no error. The claimant argues that the “proper foundation” was not laid for the contract to be admitted into evidence. (Claimant’s Brief at 18). However, § 31-298 specifically states that a trier is not bound by the ordinary common-law or statutory rules of evidence, but instead shall make inquiry in a manner best calculated to ascertain the substantial rights of the parties and carry out the intent of the Workers’ Compensation Act. Norwood v. Custom Design Services, Inc., 3844 CRB-7-98-6 (Nov. 2, 1999).

Finally, we will address the claimant’s argument that the trial commissioner erred in not continuing the formal hearing to allow the claimant time to subpoena records from the Connecticut Post, specifically copies of all of the checks paid to the claimant from August of 1996 to the present. (Claimant’s Brief at 20). The claimant contends that these checks are relevant to the issue of whether the Connecticut Post had control over the claimant. We have consistently held that it is within the broad discretion of the commissioner to grant or deny a continuance, and such a decision is virtually unreviewable. Saleh v. Poquonock Giant Grinder Shop, 4005 CRB-1-99-3 (March 13, 2000). In the instant case, the claimant had ample opportunity to obtain said evidence1 prior to the close of the formal hearing. Furthermore, said evidence would not be likely to affect the trial commissioner’s determination in this case, where the trial commissioner made numerous findings of fact which indicate that the Connecticut Post did not control the claimant in the performance of her work. We find no error. See Saleh, supra.

The trial commissioner’s decision is affirmed.

Commissioners Amado J. Vargas and Stephen B. Delaney concur.

1 We note that Attorney Enright represented that the subpoena had “been complied with” specifically that “Attorney Skuret has had a full and fair opportunity to examine records voluntarily.” 8/6/98 TR. at 87. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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