Bonner v. Liberty Home Care Agency et al.

The claimant was represented by Sidney Schulman, Esq., Schulman & Associates, 10 Grand Street, Hartford, CT 06126-0237.

The respondent, Liberty Home Care Agency, 281 Hartford Turnpike, Vernon, CT 06066 was represented at the trial level by its principal Margaret Cote. However, on appeal no one appeared or filed a brief on behalf of Liberty Home Care Agency.

The respondent, Marilyn Folta was represented by Francis Drapeau, Esq., Leighton , Katz & Drapeau, 20 East Main Street, P.O. Box 838, Rockville, CT 06606-0838.

The Second Injury Fund was represented by Brewster Blackall, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the May 3, 2005 Finding and Dismissal was heard November 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The instant appeal involves the “recurrent theme” of “conflict between independent contractor and employee status . . . .” Hynd v. General Electric Company, 10 Conn. Workers’ Comp. Rev. Op. 77, 1151 CRD-4-90-12 (April 3, 1992). The trial commissioner acting for the First District held a series of formal hearings regarding this claim and subsequently issued a Finding and Dismissal on May 3, 2005 determining that the claimant was an independent contractor and therefore not entitled to benefits under Chapter 568. The claimant appealed the Finding and Dismissal. Upon review, we find no error and uphold the trial commissioner.

The claimant, Beverly Bonner, is a home health aide. She commenced work at the home of Marilyn Folta on or about December 31, 2002. She had been referred or sent to the Folta home at the direction of Liberty Home Care Agency. Findings, ¶ 6. Liberty Home Care asserted it was a placement service and not an employer. Findings, ¶ 7. She received weekly payments from Ms. Folta or her stepson, who made a separate payment to Liberty. Findings, ¶ 8. During this work at the Folta home she contends she was injured on or about March 6, 2003. January 14, 2004 Transcript, p 31.

The claimant did not submit a 2003 income tax return at the formal hearing, but submitted 2000, 2001 and 2002 income tax returns. These returns evidence that the claimant’s primary source of income was as a sole proprietor. Findings, ¶10. In addition, taxes had not been withheld from the claimant’s pay by either Liberty or Folta. Findings, ¶ 8. The claimant’s other documentation regarding her business relationship with Liberty or Folta did not persuade the trial commissioner that an employer-employee relationship existed. Findings, ¶¶ A and B. The trial commissioner decided the tax documentation provided in which the claimant said she was an independent contractor was persuasive; Findings, ¶ C and he accordingly dismissed the claim.

A number of reasons are cited in claimant’s Motion to Correct, which were incorporated in her Reasons for Appeal as to why she should have been deemed an employee of Liberty Home Care Agency. She had to submit time sheets to Liberty, charge an hourly rate set by Liberty, obtain Liberty’s permission to change shifts or take a weekend off, report to Liberty if she had to miss work due to illness, and wear work attire acceptable to Liberty. While these matters are all relevant to consideration of whether the claimant was an employee, none refutes the trial commissioner’s conclusion that she was an independent contractor.

“[W]e note that the determination of whether an employment relationship existed at the time of the injury is largely a factual question to be resolved by the commissioner. Merlin v. Labor Force of America, Inc., 3920 CRB-4-98-10 (December 22, 1999), aff’d, 62 Conn. App. 906 (2001)(per curiam), cert. denied, 256 Conn. 922 (2001).” Bugryn v. State of Connecticut/Department of Correction, 4888 CRB-8-04-11 (October 24, 2005). The test to be applied by the trial commissioner is set forth in Malchik v. Division of Criminal Justice, 266 Conn. 728 (2003). “[T]here is no dispute about the ultimate test [for deciding whether a worker is an employee under the Workers’ Compensation Act]. It is the right of general control of the means and methods used by the person whose status is involved.’ (Internal quotation marks omitted.) Hanson v. Transportation General, Inc., 245 Conn. 613, 617, 716 A.2d 857 (1998); Ross v. Post Publishing Co., 129 Conn. 564, 567, 29 A.2d 768 (1943).” Malchik, Id., 743.

A review of our recent decisions regarding “right of general control” indicates the trial commissioner’s reasoning herein is consistent with our precedent. In Altieri v. R & M Builders, 3647 CRB-5-97-7 (December 18, 1998) we upheld a dismissal when the facts found were the claimant performed his job activities at his own pace and maintained control over his work product. Similar reasoning guided our decisions in Nelson v. Deb’s Inc., 15 Conn. Workers’ Comp. Rev. Op. 274, 2228 CRB-3-94-12 (June 20, 1996), aff’d, 45 Conn. App. 909 (1997)(per curiam), dismissed, 244 Conn. 349 (1998) and Spiwak v. Daniel Gassner d/b/a DGC, 3760 CRB-4-98-1 (April 5, 1999). The trial commissioner in this case did not find the claimant’s evidence that Liberty exercised general control over her work credible, Findings, ¶¶ A and B, and rejected her Motion to Correct adding findings establishing such a relationship.1

The facts here parallel the Hanson case, supra. In Hanson, a cab driver was subject to a variety of requirements for operating a leased cab, but the trial commissioner held that did not constitute an employee-employer relationship, a determination upheld by this board and by the Connecticut Supreme Court. “We conclude that the commissioner reasonably found that the totality of factors in this case indicates that Metro taxi drivers were not employees as that term is used under the act.” Hanson, supra, 625.

Critical to the holding in all of these cases were methods of payment inconsistent with employer-employee relationships. In Hanson, supra, “Metro did not pay any salary or fringe benefits to the drivers.” In Spiwak, supra, it was relevant “that no taxes were withheld from his pay . . . .” In Altieri, supra, “[t]he claimant was given a 1099 tax form, and no taxes were withheld.” In Nelson, supra, “the claimant paid her own Social Security and federal income tax . . . .” In this case, the claimant received no pay from Liberty. She was paid directly by Ms. Folta or her stepson who, similar to the cases cited herein, did not withhold any taxes from her pay. Findings, ¶ 8. Her tax returns demonstrate she addressed her tax obligations by virtue of reporting her earnings as a sole proprietor. The evidence presented to the trial commissioner was consistent with his finding that the claimant was an independent contractor.

In that regard, this case and the other cases cited herein are all progeny of Dupree v. Masters, 13 Conn. Workers’ Comp. Rev. Op. 316, 1791 CRB-7-93-7 (April 25, 1995), aff’d, 39 Conn. App. 929 (1995)(per curiam) where when “the nature of the work which claimant engaged in for respondent, could have been performed as either an independent contractor or as an employee,” the decisive factor was the claimant’s tax filings. “[T]he claimant considered himself self employed for tax purposes, paying his own income taxes and social security taxes at self employment rates.”

Moreover, the burden of proof was on the claimant to establish she was an employee, and it was within the province of the trial commissioner to determine the claimant’s credibility in this regard. “We may not disturb the commissioner’s conclusions which are dependent on the weight and credibility accorded the evidence. It is the trial commissioner, as the trier of facts, who determines with finality the credibility of the witnesses and the weight to be accorded their testimony. Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 349, 1675 CRB-2-93-3 (July 29, 1994), see also Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996). Altieri, supra. The CRB concluded in language directly on point herein, “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 evidence and was neither based on impermissible or unreasonable factual inferences nor contrary to law.” Id.

For those reasons, we affirm the trial commissioner’s Finding and Dismissal

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

1 Claimant’s reliance on Degnan v. Employee Staffing of America a/k/a Labor Force of America, 4580 CRB-3-02-10 (October 27, 2003) is unavailing as the facts and the law in Degnan are substantially dissimilar from this case. In Degnan, the CRB upheld the trial commissioner’s findings of fact regarding the claimant’s employment status. There was also no issue in Degnan regarding whether the claimant was self-employed; rather it was a dispute between two firms as to who would be deemed the employer for a specific compensable injury. BACK TO TEXT