State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Kocur v. IQ Technology, LLC

CASE NO. 5210 CRB-1-07-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 3, 2008

JOZEF KOCUR

CLAIMANT-APPELLEE

v.

IQ TECHNOLOGY, LLC

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Mark Leighton, Esq., Law Offices of Leighton, Katz & Drapeau, 20 East Main Street, P.O. Box 838, Rockville, CT 06066-0838.

The respondent-employer was represented by Peter Hasiuk, IQ Technology, LLC, 9 Moody Road, Building C-13, Enfield, CT 06083.

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 20, 2007 Finding and Award of the Commissioner acting for the First District was heard September 28, 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. This case involves a start-up business where the proprietor hired a machinist to make parts. The claimant suffered injuries while doing this work and filed a claim for workers’ compensation benefits. The respondent argued the claimant was an independent contractor and therefore, beyond the scope of Chapter 568. The trial commissioner concluded that the claimant was an employee after applying the legal precedent in Hanson v. Transportation General, Inc., 245 Conn. 613 (1998) to the facts of the case. The respondent has appealed; primarily on the basis the claimant’s skill level was inconsistent with being an employee. We find there was sufficient factual basis on the record to sustain the trial commissioner’s decision; hence, we affirm the Finding and Award and dismiss this appeal.

The trial commissioner found the following facts after holding a formal hearing which commenced May 20, 2006 and concluded January 16, 2007. The claimant testified through an interpreter and said he had suffered an amputation of two phalanges of the first finger of his non-master hand on May 25, 2005 while he was working for the respondent IQ Technologies, LLC at their shop in Enfield. The claimant testified that he was a machinist by trade and worked for IQ on an hourly basis, being paid at first $9 per hour and later $10 per hour. He testified that he had no taxes withheld from his pay. The machines the claimant worked on were all owned by IQ Technologies. The claimant also testified the firm’s principal, Peter Hasiuk, was present at all times the claimant worked at IQ. The claimant testified his work involved being given blueprints by Mr. Hasiuk which he had to follow in order to make various parts.

The claimant did not own any of the tools used at the IQ shop. Mr. Hasiuk determined what hours the claimant would work, including the time he would arrive and the time he would leave. The claimant testified that Mr. Hasiuk directed him as to what parts to make and that he worked under Mr. Hasiuk’s direction.

Mr. Hasiuk testified at the hearing that he did not have any paperwork such as a contract, bill or invoice between himself and the claimant as the claimant did not speak English. He testified he directed IQ’s bookkeeper as to how much to pay the claimant. He confirmed that the machines the claimant worked on were all owned by IQ. The trial commissioner also credited testimony from other witnesses that the claimant understood he was to be paid weekly, and that Mr. Hasiuk was familiar with the operation of equipment such as the Bridgeport milling machine owned by IQ.

The trial commissioner issued a Finding and Award on February 20, 2007 solely on the issue of compensability, as the parties had agreed to bifurcate the other issues to a later hearing. Based on the subordinate facts herein he determined that the claimant was an employee and not an independent contractor. He reached this conclusion since the respondent owned the machinery operated by the claimant and controlled the means and methods of the claimant’s work as he worked under the instruction of Peter Hasiuk, IQ’s principal.

The respondent-employer, proceeding pro se, appealed this ruling. The respondent also sought to introduce additional evidence, which was a letter from a former employer of the claimant attesting to his skill level and ability to work independently in producing parts. The claimant filed a Motion to Dismiss, claiming the respondent’s appeal was premature. The Second Injury Fund also filed a brief as the respondent-employer IQ Technologies was uninsured and they would face the potential obligation to pay an award. They concurred in the respondent-employer’s position the claimant was an independent contractor, and further alleging procedural errors at the hearing emanating from Mr. Hasiuk’s role as both witness and advocate for IQ Technologies.

We address first the procedural issues raised in this appeal. We deny the claimant’s Motion to Dismiss the appeal. The parties herein agreed to a bifurcation of the hearing to address the jurisdictional issue separately. Such a bifurcation is legally appropriate. Martinez-McCord v. State/Judicial Branch, 5055 CRB-7-06-2 (February 1, 2007); Swenson v. Sawoska, 18 Conn. App. 597, 601 (1989). There is presently a final determination on the issue of jurisdiction. “[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” Urban Redevelopment Commission v. Katsetos, 86 Conn. App. 236, 240-41 (2004), cert. denied, 272 Conn. 919 (2005). Judicial economy argues in favor of resolving the jurisdictional issue at this juncture, as we do not find the decision of Hummel v. Marten Transport Ltd., 282 Conn. 477 (2007) applicable to the facts herein.

We also address the procedural issues raised by the Second Injury Fund. They argue the trial commissioner “looked outside the testimony of the witnesses as a guide” and relied on statements made by Mr. Hasiuk as an advocate for the respondent-employer as evidence in this case. Respondent Second Injury Fund’s Brief, p 4-7. They argue this somehow compromised the entire credibility assessment of the trial commissioner. We are not persuaded that this constituted a form of reversible error.

In Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007), we addressed somewhat similar claims that a trial commissioner erred in his reliance on unsworn statements. We pointed out, however, in proceedings under Chapter 568, ‘“[t]he commissioner is not bound by common law or statutory rules of evidence or procedures. He may make inquiry in the manner best calculated to do so to ascertain the rights of the parties. . . .’ Delgaizo v. Veeder-Root, Inc., 133 Conn. 664, 667-668 (1947); Parisi v. Yale University, 89 Conn. App. 716, 723 (2005). See also, § 31-298 C.G.S. which states the commissioner ‘shall not be bound by the ordinary common law or statutory rules of evidence or procedure. . . .’” Id., n5. Our hearings before trial commissioners do not require the presence of an attorney or another form of professional advocate. We have a system which has the informality necessary to accommodate pro se claimants and respondents. This requires the trial commissioner to distinguish between statements of fact made by a party, and those statements a party makes as an advocate.

The Second Injury Fund identifies only one specific finding (Findings, ¶ 12) which relied solely on the statements made by Mr. Hasiuk in his cross-examination of the claimant.1 We believe that were this finding to be stricken, the remaining findings of fact would still support the trial commissioner’s legal conclusions. As a result, we find this to be a harmless error at best, see Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995).

The Second Injury Fund concurs with the primary argument made by the employer-respondent that the claimant’s skill levels were far in excess of the skill level of an employee, and hence, he should be deemed to be an independent contractor based on his ability to work independently. This argument is not supported either by our legal precedents or by the unchallenged facts on the record.

We considered this issue in Hynd v. General Electric Company, 10 Conn. Workers’ Comp. Rev. Op. 77, 1151 CRD-4-90-12 (April 3, 1992). The claimant in that case was a proofreader whom the respondent claimed acted as an independent contractor. We determined “[t]he fact that claimant was a professional in and of itself does not make her an independent contractor . . . [t]here are many professionals who are employees, e.g. teachers in a school system, lawyers in a law firm, architects in a architectural firm, etc.” Id. In Hynd, just as in the present case, the claimant was paid by the hour and did not have taxes withheld from her pay. However, we held the determining factor was whether the claimant “is subject to the will of another in the mode and manner in which the service is to be done and the means to be employed in its accomplishment. . . . ” citing Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624, 629 (1961).2

The trial commissioner herein applied the legal standards of Hanson, supra, to the facts of this case. The test in Hanson is whether based on the “totality of factors” the employer exercised the “right of control” over the claimant’s work product. Id., 624-625. The trial commissioner found that the claimant was given blueprints by Mr. Hasiuk directing him as to what parts to make and Hasiuk was always present when the claimant was working. Findings, ¶ 5. The claimant did not own any of the equipment or tools used in his work. Findings, ¶ 7. Mr. Hasiuk determined what hours the claimant would work and directed him when to arrive and leave. Findings, ¶ 9. Hasiuk said the claimant had never provided a bill or invoice, and no contract had been signed between the employer and the claimant. Findings, ¶ 15. The claimant was paid on an hourly basis. Findings, ¶ 2. The respondent-employer argues that these findings were based on accepting the claimant’s testimony. The trial commissioner has the right to find a witness credible. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). We also find the respondent does not dispute that he owned the machinery and controlled when the claimant could work.

The respondent-employer also argues the method of payment was inconsistent with employee status. While a relevant consideration, see Dupree v. Masters, 39 Conn. App. 929 (1995), we conclude the trial commissioner found that the respondent-employer still exercised the right of general control over the claimant’s work. We upheld a trial commissioner who reached the same conclusion the employer exercised the “right to control” over a claimant based on similar facts (payment by the hour worked; no tax withholding) in Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003); as we cannot retry the facts of this case we must reach the same conclusion herein.3

We acknowledge that the respondent-employer presented evidence that if credited would have deemed the claimant an independent contractor.4 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).

The respondent-employer raises two other issues. First, the respondent-employer argues that its Motion to Submit Additional Evidence should be granted. We have reviewed the additional evidence and it constitutes a report from one of the claimant’s prior employers as to the claimant’s skill level. We decline to admit this evidence for two reasons. First, we do not find this evidence would, as a matter of law, have compelled a different result on the issue as to the respondent-employer’s right to control the claimant’s work, even were this document admitted as evidence. Christy v. Ken’s Beverage, Incorporated, 5157 CRB-8-06-11 (December 7, 2007). Secondly, we are not persuaded that this evidence could not have been obtained with due diligence prior to the conclusion of the formal hearing, and thus, it cannot be admitted after the record closed. See Christy, supra, and Reeve, supra, citing Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 57-58 (2001).

The respondent-employer and the Second Injury Fund both argue that due to the respondent-employer’s status as a nascent start-up firm that the trial commissioner should have extended a more deferential standard to the respondent’s argument the claimant was an independent contractor and not an employee. We cannot find any authority either in the text of the statute or in our legal precedents to provide such a benefit to the respondent-employer. We certainly understand that new manufacturing and research firms may find workers’ compensation claims an onerous burden, but whether such firms should obtain some relief from workers’ compensation claims is a policy decision we cannot make as an adjudicatory body.

“[T]he workers’ compensation system in Connecticut is derived exclusively from statute. . . . A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” “. . . 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, supra, 618.

We are satisfied that the trial commissioner reached an appropriate decision in this matter based on the evidence and the law before him. We therefore affirm his decision and dismiss this appeal.

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

1 Findings paragraph 12 stated, “Peter Hasiuk testified that he knew nothing about the machinery in his shop, that he purchased said Bridgeport machine and lathe from a former business that was in the building. When questioning the Claimant, Peter Hasiuk divulged that there were three jaws to a chuck and they have to be put in proper correct sequence before the machine could be used indicating the principal Peter Hasiuk was familiar with the machine.” BACK TO TEXT

2 Other highly skilled professionals who were employees as defined by our Act were an airline pilot in Burse v. American International Airways, Inc., 262 Conn. 31 (2002); a school district superintendent in Chesler v. Derby, 96 Conn. App. 207 (2006) and a nuclear engineer in Solonick v. Electric Boat Corporation, 5170 CRB-2-06-12 (January 9, 2008). BACK TO TEXT

3 The respondent in Beedle also claimed he, “produced extensive evidence which refutes the allegations of the Claimant and, most importantly, which show[s] that the respondent did not have or exercise the requisite degree of control over Mr. Beedle that could lead to the legal conclusion that Don Oliver was [his] employer.” Id. If a trial commissioner reaches an adverse conclusion based on the evidence presented, we must respect such a conclusion. Berube, supra. BACK TO TEXT

4 The respondent argues that the claimant was essentially in the same position as the outside vendors which it hired to manufacture parts, and the claimant approached the respondent for work, as the claimant’s habit of leaving a job on short notice to return to Poland limited his other employment opportunities. The respondent denied directing the claimant how to make the parts. The trial commissioner did not accept this argument. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: March 7, 2008

Page URL: http://wcc.state.ct.us/crb/2008/5210crb.htm

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