State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Maskowsky v. Fed Ex Ground

CASE NO. 5200 CRB-3-07-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 28, 2008

EDWARD MASKOWSKY

CLAIMANT-APPELLANT

v.

FED EX GROUND

EMPLOYER

and

CRAWFORD & COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Timothy Gunning, Esq., Kinney, Secola & Gunning, LLC, 685 State Street, P.O. Box 1814, New Haven, CT 06508.

The respondents were represented by Richard Lynch, Esq., Lynch, Traub, Keefe and Errante, P.C., Attorneys at Law, 52 Trumbull Street, P.O. Box 1612, New Haven, CT 06506-1612.

This Petition for Review1 from the January 31, 2007 Finding of Dismissal was heard December 14, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal concerns whether the claimant, who formerly drove a delivery truck for the respondent FedEx Ground, was an employee of FedEx Ground when he was injured while making deliveries on April 26, 2005. The trial commissioner determined that the claimant had an independent contractor relationship with the respondent, and therefore, dismissed the claim as this Commission does not have subject matter jurisdiction over the injury. The claimant has appealed asserting that the trial commissioner improperly applied the “right to control” test promulgated in Hanson v. Transportation General, Inc., 245 Conn. 613 (1998) by not finding the claimant was an employee of the respondent. Upon review, we believe that the trial commissioner appropriately applied Hanson to the facts herein. Therefore, we affirm the Finding of Dismissal and dismiss this appeal.

The trial commissioner found the claimant and respondent commenced their business relationship in April 2002 when the parties executed a contract entitled FedEx Home Delivery Standard Contractor Operating Agreement. The claimant understood at the time he would be operating his FedEx Ground delivery service as an independent contractor pursuant to the terms of the operating agreement. The agreement had a fixed two year term, subject to renewal. The claimant was required to purchase or lease a delivery truck to operate the route, which had a specific geographic area. The claimant was responsible for licensing his truck, paying for fuel and maintenance, and for the payment of taxes on the vehicle. He was also responsible for insuring the truck and himself, as well as obtaining his own hand trucks. The operating agreement indicates that the claimant could hire and train others to perform his delivery duties for him.

The claimant obtained an appropriate truck from a dealer recommended by the respondent and commenced working in 2002. The claimant was not satisfied with his initial delivery route and asked FedEx for another route; which they agreed to provide. He was required to load his own truck and had to be at FedEx’s North Haven terminal no later than 9:30 a.m. The claimant generally arrived at 6:30 a.m. to load his truck. The claimant was provided with a manifest of the packages to be delivered and he was provided with a scanner so that he could scan the packages to establish a list of customers and their addresses. The claimant generally delivered about 140 packages per day, as well as making pickups. He was not required to work a minimum amount of hours and could begin his route when he decided. The claimant was paid on a weekly basis for the total amount of pickups, stops and deliveries that he made. No income taxes or social security taxes were withheld from the payments made to the claimant from the respondent. The claimant filed his federal and state taxes as a sole proprietorship in 2002, 2003 and 2004 and claimed the appropriate deductions for his delivery service business.

The record indicated the respondent did place restrictions on the claimant. He was not allowed to wear necklaces or bracelets. The claimant was required to wear a FedEx uniform when making deliveries. The operating agreement required the claimant to put FedEx Ground decals on his truck. The claimant had to cover up the company decals to use the truck for his personal use. The claimant also had to attend four safety meetings per year at FedEx.

The trial commissioner also found that the claimant had substantial autonomy in the conduct of his business. The operating agreement permitted the claimant to hire and train others to perform his delivery duties for him, and the claimant did in fact hire subordinates.2 The claimant could have purchased additional delivery routes from other FedEx Ground contractors. Following his injury, the claimant sold his route and his truck to another contractor.

Following his April 26, 2005 injury the claimant alleged that he was an employee of FedEx and was entitled to workers’ compensation benefits; asserting that the respondent controlled the means and methods of how he conducted his delivery package service within the route they provided to him. The respondent denied that the claimant was their employee, claiming that he was an independent contractor, as indicated by the operating agreement and the manner in which the claimant conducted his business as a sole proprietorship. The trial commissioner agreed with the respondent. Citing the aforementioned subordinate facts, the commissioner concluded “[t]he greater weight of the evidence indicates that the claimant had control over the performance of his delivery service” and [t]he greater weight of the substantial evidence indicates that the claimant was a sole proprietor and an independent contractor.” The claimant has appealed from this dismissal.

The claimant’s appeal focuses on the “right of general control” test in the Hanson case. The claimant readily acknowledges that he executed a contract characterizing his relationship with FedEx as an independent contractor. He also acknowledges that he was paid by the job, and not the hour, and did not have taxes withheld from his pay; facts which were found consistent with independent contractor status in Dupree v. Masters, 39 Conn. App. 929 (1995). He argues that the trial commissioner erred by concluding FedEx did not exercise the “right to control the means and methods” used by the claimant in the performance of his job. Hanson, supra, 619-620. The claimant argues that had the trial commissioner correctly applied the law governing the “right to control” that such a determination would overcome the contractual provisions herein and the mode of compensation paid by the respondent.

In evaluating this issue we have a limited scope of review. We note that a Motion to Correct was never filed in this appeal. As a result, pursuant to Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6, 4948 CRB-2-05-5 (July 26, 2006); Soto-Velez v. Michael’s Chrysler Plymouth, 4628 CRB-2-03-2 (February 3, 2004); and Crochiere v. Enfield-Board of Education, 227 Conn. 333, 347 (1993), we must accept the validity of the facts found by the trial commissioner as this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4. We must extend a certain level of deference to the trial commissioner in such a review.

“. . . we may disturb the legal conclusions of the trial commissioner only if they result from an incorrect application of the law to the facts found, or from an inference unreasonably or illegally drawn from those facts. Irizarry, supra, [v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002)], Mosman, supra, [v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001)]; Warren, supra, [v, Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001)] citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).” Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002).

Hanson, supra, is the touchstone case in recent Connecticut jurisprudence concerning the issue of when a worker is an employee or an independent contractor. The facts in Hanson are rather similar to the facts herein. The claimant in Hanson was the surviving spouse of an owner-operator of a taxicab leased from the respondent, Transportation General, Inc. (d/b/a/ Metro Taxi). Mr. Hanson died while on the job. He had executed an owner-operator agreement with the respondent. The lessee in this agreement was responsible for maintaining insurance on the vehicle and paying all expenses associated with the use of the vehicle, including repairs, maintenance and taxes. Legal title to the vehicle would revert to the owner-operator upon termination of the agreement. The lessee could set the hours of operation, hire a driver for the taxicab, and use the vehicle for personal use. The respondent did not pay the owner-operator, provide benefits or collect payroll or social security taxes. Id., 615-616.

The claimant in Hanson made the same argument we face in this appeal: that the trier of fact improperly concluded the respondent did not exercise “right of control” over the owner-operator. The Supreme Court disagreed. “… we agree with the Appellate Court, the board and the commissioner that the totality of the evidence did not demonstrate that Metro had retained sufficient control to require a finding of an employer-employee relationship between Metro and the decedent.” Id., 624. The factors the Supreme Court found determinative were such matters as the owner-operator being able to hire a second driver; his sole responsibility for all expenses related to operation of the cab; his right to regain ownership of the cab upon contract termination; and that the respondent did not pay any salary or fringe benefits to the drivers. Id., 624-625. “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.” Id.

A review of the relevant factors cited in Hanson indicates that the present case is congruent and that Hanson is controlling precedent. The claimant in the present case owned the vehicle used in the business and paid all the expenses incurred in operating the vehicle. He had the right to hire another driver, and indeed, exercised that right. FedEx did not pay the claimant by the hour; rather he was paid by the package delivered. As a result, we are not persuaded that the trial commissioner failed to apply the appropriate legal standards promulgated in Hanson; as its holding is entirely consistent with the legal determination made by the trial commissioner in the present case. We must respect the trial commissioner’s conclusions based on evaluating the totality of the evidence, and clearly as the respondents offered sufficient evidence supportive of the finding of independent contractor status we cannot now impose a different result on appeal.3

The claimant raises a variety of arguments in his appeal which we believe should be addressed. He points out that he presented a great deal of evidence concerning the scope of direction exercised by FedEx over the conduct of their drivers such as presenting proposed itineraries, being given “appointment stops,” grooming restrictions, and being shadowed occasionally by supervisors. See May 18, 2006 Transcript, pp. 18-31. The respondents counter this argument and point out that the claimant testified that he deviated from the suggested delivery itinerary on a daily basis. May 18, 2006 Transcript, p. 72. In any case, the situation is akin to the respondents’ argument in Kocur v. IQ Technology, LLC, 5210 CRB-1-07-3 (March 3, 2008) that he presented evidence the claimant was an independent contractor. “The trial commissioner was not persuaded by this evidence. In cases where a judgment call must be made by the trier of fact we cannot second guess such a decision on appeal. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).” Id.4

The claimant also relies on two cases which we can readily distinguish from the present case. Szyska v. Norwalk Taxi, Inc., 4687 CRB-7-03-6 (February 3, 2005) was a case where the trial commissioner made the factual finding the owner-operator of a taxicab was an employee, notwithstanding his tax filings as a sole proprietor. We note one significant difference besides the fact the commissioner reached a different factual conclusion in the present case. In Szyska the respondents owned the vehicle driven by the claimant. In the present case, the claimant owned his truck.5

The claimant also cites Latimer v. Administrator, 216 Conn. 237 (1990) for the proposition that the conduct of the contracting parties can overcome contractual provisions defining a worker as an independent contractor. We do not find this case persuasive as it applies state unemployment compensation law (§ 31-222(a)(1)(B)(ii) C.G.S.) and not Chapter 568. The factual findings in Latimer were adverse to the employer; unlike the present case.6 Latimer also predates Hanson, and we have concluded the trial commissioner properly applied the legal test delineated in Hanson.7

In considering these issues we note that the leading treatise, Larson’s Workers’ Compensation Law, § 61-07[5] has cited a “growing tendency to classify owner-drivers of trucks as employees when they perform continuous service which is an integral part of the employer’s business.” Larson’s treatise explained that the level of supervision between a truck operator and the contracting party could create an employer-employee relationship; since the need for elaborate cooperation between the parties would preclude the ability of the truck operator to perform his work in the manner that he chose. See Larson’s Workers’ Compensation Law, § 61-03[3]. We note that the facts in this case, where the claimant was required to make “appointment stops” during the course of the business day at the respondent’s direction, would be consistent with such an application of the law. Present Connecticut precedent, however, does not require such an application of the law.

We note that in Hanson, supra, the Supreme Court was presented with a direct challenge as to whether the legal standard of “right to control” should be replaced with a different test for determining when a worker is an employee. The appellant in Hanson sought to replace the present standard with the “relative nature of the work” standard. Id., 619-622. The Supreme Court rejected this suggestion to replace the “right to control” standard, pointing out that while “a determination of fact has elements of uncertainty” under the “right to control” standard, that the alternative standard also would lead to a determination reached after considering “close questions of fact.” Id., 622.

Having restated the “right to control” standard in Hanson, the Supreme Court then reviewed the factual basis underpinning the decision. The court distinguished the case on the facts from Lassen v. Stamford Transit Co., 102 Conn. 76 (1925), in which a taxicab driver was deemed an employee. In doing so, the court did point out that “the commissioner made some subordinate factual findings that, if viewed in isolation, might support a different determination.” Id., 624. The standard needed for the claimant to prevail however, was to establish that the “totality of the evidence” supported a finding that an employer-employee relationship existed. It is black letter law that a claimant has the burden of persuasion before the Commission. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447 (2001). In the Hanson case the Supreme Court concluded this burden had not been met as “the commissioner reasonably found that the totality of factors in this case indicates that Metro taxi drivers were not employees as the term is used under the act.” Id., 625.

Therefore, under the Hanson precedent a trial commissioner must weigh all the factors relevant to employment status prior to reaching a decision. This decision will be driven by the specific facts of each case presented. Our ability as an appellate panel to reverse such a determination on appeal is limited in scope as the inferences and conclusions reached by a trial commissioner must be accorded deference on appeal. As “[n]o reviewing court can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the[commissioner] is factually questionable.” Daubert v. Naugatuck, 267 Conn. 583, 590 (2004), citing Fair, supra. See also the standard delineated in Daniels v. Alander, 268 Conn. 320, 330 (2004). “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.”

As an appellate panel, therefore, we cannot substitute our assessment of the weight of the evidence for that of the trial commissioner. Under the Hanson precedent our role is solely to ascertain if there was a sufficient factual basis to sustain the trial commissioner’s decision based on his weighing of the “totality of the evidence.” We conclude the respondents proffered a sufficient quantum of such evidence to sustain the commissioner’s determination in this case.

Counsel for both the claimant and respondents have presented extensive case law from other jurisdictions concerning FedEx. For the reasons cited in Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007) we decline to consider these cases, as we find existing Connecticut precedent adequately addresses the issues at hand.

Earlier this year, we were presented with a similar case involving an individual injured while working for a package delivery service. In Parkman v. Express Courier Systems, Inc., 5203 CRB-1-07-3 (February 25, 2008) we applied the test in Hanson and determined the trial commissioner appropriately determined the claimant 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).” Id. This factual question was resolved against the claimant herein. In both the present case and in Parkman the claimant has advanced a public policy argument in an effort to overcome the adverse factual determination. We must reach the same conclusion that “we must bear in mind that we are an adjudicatory body, and not an entity charged with legislating policy for the State of Connecticut.” Id.8 The trial commissioner in the present case appropriately applied the current governing law in Connecticut concerning independent contractor status based on the precedent in Hanson, supra.

There is no error, and the trial commissioner’s Finding of Dismissal is affirmed.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 We note that a postponement was granted during the pendency of this appeal. BACK TO TEXT

2 The record indicates that the claimant paid his employee in cash or check without tax withholding; and did not provide his subordinate workers’ compensation insurance. BACK TO TEXT

3 To impose a different result as an appellate panel this board would need circumstances akin to Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007). “The decision did not discuss the evidence presented at the hearing and appears to be based solely on an interpretation of law we have concluded was in error.” In the present case the trial commissioner clearly considered the evidence presented and applied appropriate appellate precedent. BACK TO TEXT

4 We note in Kocur v. IQ Technology, LLC, 5210 CRB-1-07-3 (March 3, 2008) the respondent owned the equipment used by the claimant and was present during his hours of employment, thus exercising the right of general control. BACK TO TEXT

5 Whether a worker had a significant investment in the materials or tools required to perform a job or whether they were furnished by the employer, is a critical question in determining whether an employer-employee relationship existed. See Nationwide Mutual Ins., Co., v. Allen, 83 Conn. App. 526, 535-536 (2004). BACK TO TEXT

6 These findings in Latimer v. Administrator, 216 Conn. 237, 249-250 (1990) included findings that the employee could not assign his work to others, was paid on an hourly basis, and was provided the materials or tools needed to perform his work. BACK TO TEXT

7 Among the terms of the contract between the claimant and FedEx Ground were Section 1.14 “Discretion of Contractor to determine Method and Means of Meeting Business Objectives,” in which FedEx Ground relinquished any authority over the contractor’s hours, break times or which route to follow and Section 3.6 “Work Accident and Workers’ Compensation,” wherein the contractor agreed to be responsible for maintaining his own work accident and/or workers’ compensation insurance for himself and his employees. Joint Exhibit 1. This contract is materially different from the contract in Latimer or the contract we held not to be dispositive in Hynd v. General Electric Company, 10 Conn. Workers’ Comp. Rev. Op. 77, 1151 CRD-4-90-12 (April 3, 1992), as the claimant in Hynd was paid by the hour, worked under direct supervision at a single workplace and had a fixed schedule of hours. BACK TO TEXT

8 “Because of the statutory nature of our workers’ compensation system, policy determinations as to what injuries are compensable and what jurisdictional limitations apply thereto are for the legislature, not the judiciary or the board to make.” Kronick v. Ansonia Copper & Brass Co., 5127 CRB-5-06-8 (August 15, 2007) (Mastropietro, Chairman, concurring) quoting Hanson v. Transportation General, Inc., 245 Conn. 613, 618 (1998). BACK TO TEXT

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