CASE NO. 5316 CRB-7-08-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 11, 2009
ED CONSTRUCTION a/k/a E.D. CONSTRUCTION, INC.
TRAVELERS PROPERTY & CASUALTY
CNA CLAIM PLUS
SECOND INJURY FUND
The claimant was represented by James T. Baldwin, Esq., Coles, Baldwin & Kaiser, Attorneys and Counselors at Law, 1261 Post Road, P.O. Box 577, Fairfield, CT 06824.
The respondent Ed Construction a/k/a E.D. Construction, Inc., was represented by Robert J. Sciglimpaglia, Esq., The Law Offices of BT Canty, 193 East Avenue, Norwalk, CT 06855.
The respondent Travelers Property & Casualty was represented by Tracy Green Cleary, Esq., Law Offices of Cynthia M. Garraty, Crossroads Corporate Park, 6 Devine Street, 1st Floor, North Haven, CT 06473.
The respondent CNA ClaimsPlus was represented by Sean Nourie, Esq., Conway & Stoughton, LLP, 818 Farmington Avenue, West Hartford, CT 06119.
The respondent Second Injury fund was represented by Lisa Weiss, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review1 from the January 10, 2008 Finding & Dismissal of the Commissioner acting for the Seventh District was heard January 23, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Stephen B. Delaney.
JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal involves the question as to whether the claimant was an employee or an independent contractor at the time of his injury. Two central questions need to be resolved in the claimant’s favor in order to award benefits under Chapter 568. The claimant must demonstrate he or she is credible and the claimant has the burden of proving the presence of an employer-employee relationship. The claimant herein is appealing the denial of benefits under this act. Upon reviewing the record before the trial commissioner we conclude he resolved those two central issues in a manner adverse to the claimant. Since these pose questions of fact, we are unable to reach a contrary result. We affirm the Finding and Dismissal and dismiss this appeal.
A workplace accident on June 14, 2003, which in the words of the trial commissioner resulted in “horrific and catastrophic injuries” to the claimant prompted this claim. On that date the claimant was working on a roof and was in the process of drying moist plywood with a torch when an explosion and fire occurred. Therefore, there is no dispute that the claimant’s injuries are the result of injuries incurred while he was employed. The sole issue for our consideration is whether the claimant was an employee of the respondent ED Construction at the time of this accident, or as the respondent maintains, was an independent contractor who was responsible for his own insurance against workplace injuries.
The trial commissioner found the following facts which are relevant to our appellate review. The claimant, a native of Mexico, was not proficient in roofing work when he commenced working for ED Construction. He testified that he learned how to do roofing from ED’s principal, Ed Devingo, and after about two years was proficient at the trade. He was originally paid $100 per day but then was paid by the hour. At the time of the claimant’s accident he was being paid at the rate of $20 per hour, and depending on the weather, was working 30 to 42 hours per week. The claimant produced evidence that he cashed over $65,000 of checks from ED Construction during the three years prior to the accident.
The claimant’s evidence also included 1099 Federal Income Tax forms from E.D. Construction, Inc. to Ramiro Rodriguez for miscellaneous income for the years 1998, 2000, 2001, 2002 and 2003. He also executed various forms acknowledging that he was a subcontractor for ED Construction and was excluded from coverage under the Connecticut Workers’ Compensation Act. The claimant testified that he did not understand English and did not understand the consequences of executing the forms excluding himself from workers’ compensation coverage. The trial commissioner specifically did not find these facts after considering the claimant’s testimony. The claimant also executed a form representing that he would carry general liability insurance as a condition of working for ED Construction; and executed a general liability insurance policy, which named ED Construction as the certificate holder. The claimant again testified he did not understand the significance of these documents, which was not accepted by the trial commissioner.
The claimant testified that notwithstanding these documents that he considered himself an employee of ED Construction. He testified that the firm provided the tools, equipment and materials for any of the jobs including the job where the injury herein occurred. He also testified that the respondent would provide transportation to the worksite and would set the hours and the places to be worked. The claimant also testified that he only did one or two outside jobs in his own name. The trial commissioner did not find any of these statements as facts, however.
The respondent’s principal, Ed Devingo, testified he first met Ramiro Rodriguez in 1994. He testified that the claimant was an intelligent individual and picked up the roofing trade very quickly. He also testified the claimant understood and spoke English and that he had his own roofing business, which had its own tools, compressors, guns and the like. Devingo testified that originally he paid the claimant in cash, but once he informed the claimant that the claimant was to become an independent contractor, ED Construction paid him by check. Mr. Devingo stated that he was not on the job site when the incident occurred and that his subcontractors would provide their own tools and act on their own in accomplishing the assigned tasks. Mr. Devingo also confirmed the claimant’s testimony that at some point in time prior to his date of injury, the claimant was informed that he could no longer work for or with ED Construction unless he agreed to be an independent contractor and get his own insurance.
Two employees of the John Glover insurance agency, John Forlivio and Tina Scarpelli, testified at the hearing. They testified that the claimant had had liability insurance policies through their agency for a number of years prior to the accident. They also testified it was agency policy to speak directly to the insured and that neither spoke Spanish. While the claimant had testified that the funds necessary for his insurance coverage were deducted by ED Construction and paid by that firm; these witnesses did not confirm this account and Mr. Devingo denied having done this. Four individuals who had done business with the claimant independent of ED Construction also testified at the hearing. A business card from claimant identifying himself as “Ramiro Roofing, Ramiro Rodriguez, owner” was also introduced as evidence.
Based on these subordinate facts the trial commissioner reached the following conclusions.
A. That prior to the date of the Claimant’s injuries he was able to speak and understand English and read English to some extent.
B. That notwithstanding the contradictory testimony regarding the method of payment the control exercised by ED Construction over the Claimant, the Claimant of his own volition agreed to change his status from that of an employee with which he had begun his relationship with ED Construction to that of an independent contractor.
C. That the Claimant understood and reluctantly agreed to continue the relationship with ED Construction after he was informed that he would become an independent contractor.
D. That the Claimant knowingly signed the exclusionary forms for the Workers’ Compensation Commission and the agreements stating that he was an independent contractor and thusly he was not an employee on the date of his injuries”
Therefore, the trial commissioner decided on January 10, 2008 that the claimant’s claim for benefits must be dismissed because he was not an employee on the date of his injuries. Within the statutory period to appeal this decision the claimant, acting pro se, filed a Petition for Review of the Finding and Dismissal. He did not file a Motion to Correct and did not file his Reasons for Appeal until March 7, 2008. The respondents filed a Motion to Dismiss on the grounds the claimant did not file timely Reasons for Appeal. The claimant retained counsel who filed for various extensions of time, which were granted.
We first wish to deal with the respondents’ Motion to Dismiss the appeal. We deny this motion. Considering the totality of the matter, we find the respondents were adequately apprised in a timely manner of the issues herein by the Appellant’s Brief. In the absence of prejudice to the opposing party, a dismissal is unwarranted. Roussel v. Village Gate of Farmington, 4918 CRB-6-05-2 (February 28, 2006).
The claimant alleges three separate grounds to reverse the trial commissioner’s decision. He alleges that the trial commissioner failed to properly apply the “right to control” test which is the applicable standard under Connecticut law for determining whether a worker is an independent contractor or an employee. He alleges that another case involving this employer is so similar that it should be accorded the force of stare decisis. Finally, the claimant asserts the trial commissioner placed improper weight upon the decision of the claimant to declare himself a sole proprietor for insurance purposes, as permitted under § 31-275(10) C.G.S.; which in the claimant’s view lacks legal significance as to whether or not the claimant was an employee at the time of the injury.
This panel has had numerous occasions in recent years to consider the circumstances in which a worker may be deemed an independent contractor rather than an employee. Perhaps our most authoritative recent analysis of this issue occurred last year in Maskowsky v. Fed Ex Ground, 5200 CRB-3-07-2 (July 28, 2008). We find many similarities between the present case and Maskowsky, particularly in the application of the “right to control” test in Hanson v. Transportation General, Inc., 245 Conn. 613 (1998).
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 the present case we find that the claimant also was paid in a manner consistent with independent contractor status and executed various documents evidencing scienter that he was not acting as an employee of the respondent. While the claimant now challenges the factual basis of the trial commissioner’s findings we note another similarity to Maskowsky: the absence of a Motion to Correct.
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).
In reviewing the specific factual findings we find that on a number of occasions the trial commissioner specifically found that he rejected the testimony of the claimant. We may infer from these numerous findings of incredulity that the trial commissioner did not find the claimant a credible witness. “[O]ur precedent requires a trial commissioner to dismiss a claim when he finds the claimant lacks credibility.” Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008). In Toroveci we pointed out as an appellate panel we cannot revisit issues of witness credibility.
Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record. Burton v. Mottolese, 267 Conn. 1, 40 (2003).
We do agree with the claimant that as a matter of law, when a party executes an election to be treated as a sole proprietor it does not govern over the question of whether the respondent had the “right to control” over the claimant’s activities at the worksite. Nonetheless, we do find the trial commissioner’s analysis of this issue relevant as to whether he found the claimant credible. The claimant testified he considered himself an employee of ED Construction, did not understand the various insurance forms declaring him an independent contractor, and did not pay for his insurance. The trial commissioner, after hearing evidence to the contrary, specifically rejected the claimant’s testimony on each of these points.
On numerous occasions, this board has repeated the axiom that the claimant has the burden of persuasion before the Commission. Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006). Central to sustaining the burden is the claimant establishing that he or she is a credible witness. Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008). Such credibility determinations are “uniquely and exclusively the province of the trial commissioner.” Smith v. Salamander Designs, LTD, 5205 CRB-1-07-3 (March 13, 2008). Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008).
In order for the claimant to prevail, it was his burden to establish the existence of an employer-employee relationship. “Our precedent makes clear it is the claimant’s burden to establish the jurisdictional fact of an employer-employee relationship, ‘[t]he burden rested on the plaintiff to prove that he was an employee. Morganelli v. Derby, 105 Conn. 545, 551 (1927);’ Bourgeois v. Cacciapuoti, 138 Conn. 317, 321 (1951).” Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007). It is self-evident that if the trial commissioner found the claimant lacked credibility on important elements of his testimony that this would pose an obstacle to proving this threshold question of jurisdiction.
Returning to the “right to control” test under Hanson, supra, we agree with the claimant that the appropriate question before the trial commissioner was whether the respondent had “right to control the means and methods” used by the claimant in the performance of his job. Hanson, supra, 619-620. This was the basis of conflicting evidence. The claimant testified that the firm provided the tools, equipment and materials he used on the job where the injury herein occurred. He also testified that Mr. Devingo would provide transportation to the worksite and would set the hours and the places to be worked. The respondent’s principal, however, testified that the claimant supplied his own tools and decided on his own to use a torch to dry the roof surface that caught fire. Mr. Devingo also testified he was not on the job site at the time of the injury. The trial commissioner specifically rejected the claimant’s testimony concerning the respondent’s role in providing tools; which would have supported the finding of an employer-employee relationship. Compare Kocur v. IQ Technology, LLC, 5210 CRB-1-07-3 (March 3, 2008) (claimant used respondent’s equipment and respondent was present at time of injury) with the present case.2
The trial commissioner’s findings, in particular Findings, ¶ 25, ¶ 26 and ¶ 33, are unsupportive of the claimant’s position “[h]ad the Trial Commissioner applied the ‘right to control’ test to the evidence on the record, he would have found that Ramiro Rodriguez was an employee of ED Construction.” Claimant’s Brief, p. 14. The subordinate facts in the Finding and Dismissal indicate the claimant was using his own tools and was acting in an autonomous manner at the time of the injury. We can find no material difference herein between the present situation and the fact pattern in Yurevich v. Dimitri Logvinski, 5013 CRB-7-05-10 (September 22, 2006) where we pointed out “[w]e have distinguished in recent cases between employees who are retained and directly supervised and other cases where one was hired to work in an autonomous manner and paid consistent with independent contractor status.” Since “[e]mployment status is patently a factual issue, and is subject to a significant level of deference on review,” (Internal citations omitted), id., we must respect the trial commissioner’s findings herein. The Hanson test involves the consideration of “the totality of factors,” Hanson, supra, 625; we find the trial commissioner determined that the totality of factors did not support the finding of an employer-employee relationship.
The other major element herein is the argument that the trial commissioner was bound to find the claimant an employee of ED Construction because another claimant who had worked for the respondent was deemed to have been an employee. The claimant cites Badawieh v. Federal Express Corporation, 5240 CRB-7-07-6 (September 4, 2008) for the proposition that another trial commissioner’s decision, Jesus Hernandez v. ED Construction, where the claimant proved an employer-employee relationship existed, should have been accorded the force of stare decisis. We disagree as this fundamentally misreads the concept of stare decisis.
In Badawieh, supra, we remanded a decision of the trial commissioner when it became apparent on review she had failed to consider the import of two previous appellate decisions based on the same issues. “We note that as a matter of law individuals who sign contracts to deliver newspapers have generally been outside the jurisdiction of our Commission for many decades, starting with the Ross [v. Publishing Co., 129 Conn. 564 (1943)] case which the Appellate Court relied on in affirming this board’s decision in DaSilva [v. Danbury Publishing Co., 39 Conn. App. 653 (1995), cert. denied, 235 Conn. 936 (1999)]. See DaSilva, supra, 653-656.” In reaffirming the importance of stare decisis we pointed out that a trial commissioner must rely on prior appellate precedent in resolving disputes before this commission.3
The case cited herein by the claimant is not an appellate decision, and therefore, does not have the power to bind another trial commissioner. The inapplicability of stare decisis when different triers of fact reach a different conclusion in different cases has not been the basis of precedent from this tribunal, but we may look to other Connecticut authorities for guidance. The leading case on this point is In re Carrozzella & Richardson 255 B.R. 267 (Bkrtcy D. Conn. 2000) where it was held “[i]t is widely accepted that the decision of one district court judge is not binding on another district judge, even within the same district” Id, 272. We find this reasoning applicable to the adjudication of claims brought under Chapter 568. As we can find no appellate authority supportive of the claimant’s position, we find it unpersuasive. We find that while appellate panels may reach decisions of binding precedential value; a decision of one trial commissioner cannot bind another trial commissioner in a dispute pertaining to a different claimant.4
The claimant failed to persuade the trial commissioner on the two central questions essential to proving his claim: that his testimony was credible and that an employer-employee relationship existed at the time of the accident. The subordinate facts found by the trial commissioner are consistent with precedent such as Dupree v. Masters, 39 Conn. App. 929 (1995) and Yurevich v. Dimitri Logvinski, 5013 CRB-7-05-10 (September 22, 2006) where independent contractor status was found. The concept of stare decisis is inapplicable to these circumstances. Since the result herein is legally consistent with the facts found by the trial commissioner, we affirm the decision and dismiss this appeal.
Commissioners Peter C. Mlynarczyk and Stephen B. Delaney concur in this opinion.
1 We note that a postponement as well as an extension of time was granted during the pendency of this appeal. BACK TO TEXT
2 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
3 In Badawieh v. Federal Express Corporation, 5240 CRB-7-07-6 (September 4, 2008) we stated, “[w]e also take notice that it may be difficult to readily ascertain when a worker is an employee or an independent contractor, and therefore, prior decisions of this board and the appellate courts are looked to by workers, businesses and the insurance industry for guidance. (Emphasis added) We note that we did not include decisions reached by other trial commissioners within the scope of binding authority. BACK TO TEXT
4 In Hanson v. Transportation General, Inc., 245 Conn. 613, 619-22 (1998) the Supreme Court points out that either under the “right to control” test or the other test proposed, the “relative nature of the work” standard, that while “a determination of fact has elements of uncertainty” under the “right to control” standard, that the alternative standard also could lead to a determination reached after considering “close questions of fact.” Given the “close question of fact” which may determine whether or not an employer-employee relationship exists in any given case, we do not find that the Jesus Hernandez case would have compelled a different outcome herein even had the trial commissioner taken administrative notice of the decision. BACK TO TEXT