State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Parkman v. Express Courier Systems, Inc. et al.

CASE NO. 5203 CRB-1-07-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 25, 2008

CASSANDRA PARKMAN

CLAIMANT-APPELLANT

v.

EXPRESS COURIER SYSTEMS, INC., et al

EMPLOYER

and

ZURICH NORTH AMERICA

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, 96 Webster Street, Hartford, CT 06114.

Respondent-employer Express Courier Systems, Inc., was represented by Vincent Mase, Esq., Law Offices of Vincent J. Mase, 129 Church Street, Sixth Floor, New Haven, CT 06510.

Respondents Express Courier and Zurich North America were represented by Jennifer Katz, Esq., Conway & Stoughton, LLP, 818 Farmington Avenue, West Hartford, CT 06119.

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

This Petition for Review from the February 26, 2007 Finding and Dismissal of the Commissioner acting for the First District was heard September 28, 2007 before a Compensation Review Board panel consisting of Commissioners Amado J. Vargas, Nancy E. Salerno and Scott A. Barton.

OPINION

AMADO J. VARGAS, COMMISSIONER. The present case concerns the recurring theme of when an individual is an independent contractor, and not an employee. The claimant worked for a delivery firm and filed a claim following a work related accident. The trial commissioner dismissed her claim finding that the claimant was an independent contractor, and therefore, the Commission lacked subject matter jurisdiction over the injury. The claimant has appealed, asserting she was an employee and that in addition, preclusion should issue against the individual who recruited her, Jason Napoletano, as he did not file a timely disclaimer of liability. We find this case is dependent on the facts found by the trial commissioner. As the facts found by the trial commissioner were that the claimant was not an employee, the Commission lacks jurisdiction over either respondent. Hence, we uphold the Finding and Dismissal and dismiss this appeal.

This claim resulted from an ankle injury Ms. Parkman suffered December 1, 2005 while delivering a package for the respondent Express Courier. Express Courier is a package delivery service that retains individuals as independent contractors to deliver its packages. One such contractor was Jason Napoletano. He was paid by the job, had no taxes withheld, and filed his taxes as an independent contractor.

Mr. Napoletano placed newspaper ads seeking additional delivery staff for Express Courier. The trial commissioner determined the ad indicated the individuals retained would be independent contractors. The claimant answered the ad and was told to go to the Express Courier office in New Haven to fill out the necessary forms. One form was a business associate agreement entitled “HIPPA compliance” between Express Courier and Parkman “independent contractor.”

The trial commissioner found that the respondent Express Courier paid the claimant by the job, and not by the hour. The claimant did not have taxes deducted from her earnings. The claimant determined whether or not she would on a given day work the hours she worked and when she took her breaks. There were no set hours or days that she was required to work. She could accept or reject any delivery job offered. There was no minimum number of deliveries to stay in the courier pool. Express Courier had no control over the order of stops or the route that the claimant took. The claimant drove her own car and was not reimbursed for any auto expenses such as gas, insurance, motor vehicle taxes, or repairs.

The trial commissioner also found that Jason Napoletano had no control over the claimant’s schedule. His functions were limited to forwarding commissions from Express Courier to the claimant.

Based on the subordinate facts found, the trial commissioner concluded that the claimant was an independent contractor, and was not an employee either of Express Courier or Jason Napoletano. The trial commissioner concluded two cases were dispositive of the legal issues herein. Since the claimant chose the route that she would take, whether or not she would work at all on a particular day, and neither Express Courier nor Jason Napoletano told her how to perform her duties, the case of Hanson v. Transportation General, Inc., 245 Conn. 613 (1998) weighed against the claimant. The fact the claimant was paid by the job and not by the hour, and did not have taxes withheld also weighed against the claimant based on the precedent in James Richard Dupree v. Gary Masters et al, 39 Conn. App. 929 (1995).

Following the issuance of the Finding and Dismissal in this case Motions to Correct were filed by both the claimant and the respondent Express Courier’s insurance carrier. Both motions were granted in part and denied in part. The overall result of the trial commissioner’s rulings on these motions was not material to the determination the Commission lacked jurisdiction due to the absence of an employee-employer relationship. The claimant has appealed that ruling.

The gravamen of the claimant’s appeal is that the facts presented were conclusive that an employee-employer relationship existed between her and Express Courier, or in the alternative, between her and Mr. Napoletano. She argues “the Commissioner should have relied on Hynd v. General Electric Company, 10 Conn. Workers’ Comp. Rev. Op. 77, 1151 CRD-4-90-12 (April 3, 1992)” as the claimant believes she did not control her work activity. Upon review, we find Hynd is substantially dissimilar from this case and does not direct a different result. The claimant in Hynd was paid by the hour and worked a set schedule at a single work location. The respondent in the Hynd case clearly had a greater level of control over the claimant’s work activities than the respondent in this case, where it is undisputed there were no set working hours and the claimant’s work was performed outside the respondent’s premises.

The present case is far more similar to Bonner v. Liberty Home Care Agency, 4945 CRB-6-05-5 (May 12, 2006). In Bonner the trial commissioner found that a home health aide who had paid her taxes as a sole proprietor could not be considered an employee within the scope of Chapter 568. This board upheld that decision on appeal and reviewed a number of recent cases where the issue of independent contractor status was considered on appeal.

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 [Bonner v. Liberty Home Care Agency]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.
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, [Bonner v. Liberty Home Care Agency] 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. Id.

Our decision in Bonner therefore cited Dupree as binding precedent for the proposition that one’s tax filing status can be decisive in resolving the question as to whether one is acting as an employee or as an independent contractor. In the present case the trial commissioner found that the claimant was paid by the job and had no taxes withheld from her pay.1 Stare decisis compels us to uphold the trial commissioner in this matter.

We also find that Hanson, supra, delineates the standard for the trial commissioner to determine whether “the right of general control” was exercised by the respondent. The trial commissioner found a number of facts inconsistent with the respondents exercising control over the claimant’s work. The claimant decided when she would work and used her own vehicle to make her deliveries. The claimant chose her routes when making deliveries. She received no reimbursement for car expenses. “[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).” Bonner, supra. The facts found by the trial commissioner supported his legal conclusions.

Notwithstanding the trial commissioner’s findings on the issue of the claimant’s business relationship with Express Courier, the claimant believes that she should have been found to be an employee of Jason Napoletano. She believes that since Mr. Napoletano failed to file a timely disclaimer of claim, that a Motion to Preclude should have been granted. Our review of the law indicates that one must establish an employer-employee relationship existed in order to prevail on a Motion to Preclude. The trial commissioner did not believe the claimant proved she was an employee of Mr. Napoletano; hence, the Commission lacked subject matter jurisdiction over the injury. Appellate precedent supports the trial commissioner.

DelToro v. Stamford, 270 Conn. 532 (2004) stands for the proposition that subject matter jurisdiction is a prerequisite for this Commission to provide relief to a claimant. DelToro cited Castro v. Viera, 207 Conn. 420 (1988) and found that the existence of an employer-employee relationship was an essential jurisdictional fact for a claim under Chapter 568. Even when the respondents failed to adhere to the requirement under § 31-294c(b) C.G.S. to file a disclaimer of liability which ordinarily would establish compensability “we previously have established that this conclusive presumption does not prevent an employer from contesting liability on the basis the commissioner lacks subject matter jurisdiction.” (Emphasis in original) DelToro, supra, 543.2 The trial commissioner found Mr. Napoletano “had nothing to do with the deliveries or routes that Express Courier offered the Claimant” and his only function “was that Express Courier paid him for the Claimant’s commissions and he then paid the Claimant.” The trial commissioner had the right to determine the facts based on the evidence on the record. The facts he found were inconsistent with Mr. Napoletano acting as an employer. Merlin, supra.

Finally, we address the issue counsel for the claimant raised before this board at oral argument. He argued that the result of this decision contravenes public policy and that employers should not utilize independent contractor status for the purpose of avoiding liability for work related injuries. While we are familiar with the humanitarian purpose behind the Workers’ Compensation Act, we must bear in mind that we are an adjudicatory body, and not an entity charged with legislating policy for the State of Connecticut. “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, and not the judiciary or the board, to make.” Disciullo v. Stone & Webster, 242 Conn. 570, 577 (1997). The public policy behind such decisions as Hanson, supra, and Dupree, supra, has been left unaltered by the General Assembly for over a decade. As the Chairman pointed out in his concurrence in Kronick v. Ansonia Copper & Brass, 5127 CRB-5-06-8 (August 15, 2007) the concept of “legislative acquiescence” limits the ability of future tribunals to reconsider prior decisions. See Hummel v. Marten Transport, Ltd., 282 Conn. 477 (2007). “Once an appropriate interval to permit legislative reconsideration has passed without corrective legislative action, the inference of legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the merits of our earlier decision. . . .” Id., 494-495. We defer to the General Assembly to determine the policy issue of whether a more limited definition of independent contractor should be adopted.

We believe the trial commissioner had the duty to find the facts in this matter. The facts that he found were consistent with the legal determination the claimant was an independent contractor.3 We cannot overturn such a decision on appeal.

The Finding and Dismissal is affirmed and this appeal is dismissed.

Commissioners Scott A. Barton and Nancy E. Salerno concur in this opinion.

1 In fact in Bonner the claimant was paid by the hour; wherein in this case the claimant was paid by the job. BACK TO TEXT

2 See Footnote 8 of DelToro, which discusses the concept of statutory preclusion. “Subject matter jurisdiction principles, however, prevent this bar from applying to a claim that never fell within the scope of the Act in the first place.” BACK TO TEXT

3 The claimant asserts error from the trial commissioner’s denial of its Motion to Correct. Since the Motion to Correct essentially sought to interpose the claimant’s conclusions as to the facts presented, we find no error. See Liano v.Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

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Page last revised: March 7, 2008

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