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Balogh v. F.J. Dahill Company

CASE NO. 4267 CRB-7-00-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 2, 2001

DOMINIC BALOGH

CLAIMANT-APPELLEE

v.

F.J. DAHILL COMPANY

EMPLOYER

and

CNA INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by George Romania, Esq., Law Office of George Romania, 2862 Whitney Avenue, Hamden, CT 06518.

The respondents were represented by Diane Lord, Esq., Law Offices of Grant Miller, Jr., 29 South Main Street, Suite 310 N, West Hartford, CT 06107-2445.

This Petition for Review from the July 7, 2000 Finding and Award of the Commissioner acting for the Seventh District was heard March 30, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have filed a petition for review from the July 7, 2000 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 F.J. Dahill Company (“Dahill”) at the time of his injury on September 20, 1999. In support of their appeal, the respondents contend that the trial commissioner’s conclusion was contrary to the evidence presented. Specifically, the respondents argue that the respondent Dahill did not have sufficient control over the claimant’s job performance on the work site to allow the trial commissioner to conclude that the claimant was an employee. We find no error.

The trial commissioner found that the claimant sustained compensable injuries on September 20, 1999 when he fell while painting a smokestack at the Boehringer-Ingelheim plant in Ridgefield, Connecticut. The claimant had been employed by Dahill for two periods of time: from 1987 through August of 1994 and from April to May of 1996. In August of 1994, the claimant established his own company known as Balogh’s Painting and Restoration, under which entity the claimant occasionally did work for Dahill as an independent contractor.

In June of 1999, Dahill contracted with Boehringer-Ingelheim to paint its smokestacks, and Dahill asked the claimant to do the job. The claimant negotiated with Robert Cuomo, a management level employee of Dahill, for a flat fee of $3,000.00. This sum did not include materials, which would be provided by Dahill. The type of paint was agreed upon between Dahill and Boehringer-Ingelheim. The claimant would pay for any help he required in completing the job, and Mr. Cuomo directed the claimant to obtain a helper. The claimant commenced working on the project on September 7, 1999, placing a ladder on the roof of the building to reach the smokestack. Shortly thereafter, Raisa Kendell, a project engineer on the payroll of Boehringer-Ingelheim, stopped the claimant from continuing work due to concern for the safety of the claimant.

The claimant advised Mr. Cuomo that the job had been shut down. A meeting was held with Mr. Cuomo, Ms. Kendell, an office manager from Boehringer-Ingelheim, a safety personnel officer from Boehringer-Ingelheim, and a safety consultant from Dahill. The claimant was not at this meeting. As a result of this meeting, it was agreed that the ladder used by the claimant would be tied off in a certain manner, and this was conveyed to the claimant by Mr. Cuomo. Additionally, the trial commissioner found that on prior projects, the claimant was required to provide a certificate of insurance to Boehringer-Ingelheim, whereas in the instant case he had not been so required. The claimant testified that whether or not he was required to supply a certificate of insurance to Dahill indicated to him whether he was acting as an employee or an independent contractor.

The trial commissioner concluded that the “control of the manner in which the job was to be done was in the Employer, Dahill Company.” Finding, ¶ A. The trial commissioner thus concluded that the claimant was an employee of Dahill rather than an independent contractor. In support of their appeal, the respondents contend that the facts indicate that Dahill did not have control over the means and methods of the claimant’s work. Specifically, the respondents argue that the representatives of Dahill were not at the job site inspecting or directing the claimant’s work. The respondents further argue: (1) the claimant was paid in a lump sum (see Finding ¶ 5); (2) the claimant determined when he would report to the work site and how long he would work each day (the trial commissioner did not so find); (3) the claimant could decide who to hire as an assistant and how much to pay such assistant (see Finding ¶ 7, 8 and 22); and (4) there was no completion date for the project (the trial commissioner did not so find).

We have repeatedly held that whether a claimant is an employee or an independent contractor is a factual issue for a trial commissioner to determine. Johnson v. Braun Moving, Inc., 3861 CRB-7-98-7 (Nov. 2, 1999). 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).

As long as there is evidence to support a commissioner’s decision that one is an employee rather than an independent contractor, we will not disturb that conclusion, for the weight and credibility of the evidence is for the trial commissioner to evaluate. Morrissey v. Lannon-Norton Associates, 3085 CRB-4-95-6 (Dec. 23, 1996).

In the instant case, the trial commissioner made various findings regarding the claimant’s employment relationship, and was entitled to give greater weight to those factors which indicated that the employer had control over the claimant’s work, including the fact that the claimant was told how to secure his ladder. The trial commissioner appears to have found it significant that the safety issue regarding the claimant’s use of his ladder was discussed at a meeting without the claimant present by representatives of Dahill and Boehringer-Ingelheim, and that a decision was made at that meeting and conveyed to the claimant by Mr. Cuomo. The trial commissioner’s conclusion that the claimant was acting as an employee is further supported by his finding that all supplies were provided by Dahill, and the special paint was negotiated between Dahill and Boehringer-Ingelheim. We conclude that the findings of fact, which are supported by the record, support the conclusion that the employer had control over the means and methods of the claimant’s work.

Finally, we find no error in the trial commissioner’s denial of the respondents’ Motion to Correct. As discussed above, the trial commissioner found the safety issue regarding the ladder, including the claimant’s absence at the meeting and the fact that the claimant was told how to tie off the ladder, to be significant in his determination that Dahill had control over the manner in which the job was done. The respondents did not seek to alter these facts. As a Motion to Correct may be denied where the legal conclusion of the commissioner would not be altered by the substituted findings, we find no error in the trial commissioner’s denial of the Motion to Correct. Hanson, supra, at 625-26; Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995).

The trial commissioner’s decision is affirmed.

Insofar as the claimant has yet to receive any benefits due him pending the outcome of this appeal, interest is awarded on those unpaid amounts as required by § 31-301c(b).

Commissioners George A. Waldron and Ernie R. Walker concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

Page URL: http://wcc.state.ct.us/crb/2001/4267crb.htm

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