CASE NO. 5373 CRB-8-08-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 14, 2009
TIMOTHY W. SCHLEIDT
ELDREDGE CARPENTRY, LLC
TOWN OF OLD SAYBROOK
SECOND INJURY FUND
The claimant was represented by Peter G. Perakos, II, Esq., and Barry Zitser, Esq., Perakos & Zitser, P.C., 44 Capitol Avenue, Suite 302, Hartford, CT 06106-1706.
The respondent-employer was represented by Michael McCormack, Esq. Tyler Cooper & Alcorn, LLP, 205 Church Street, P.O. Box 1936, New Haven, CT 06509-1910.
The respondents Town of Old Saybrook and CIRMA were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
The Second Injury Fund was represented by Philip Schulz, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, Hartford, CT 06141-0120.
This Petition for Review from the August 14, 2008 Finding and Dismissal of the Commissioner acting for the Eighth District was heard February 27, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.
JOHN A. MASTROPIETRO, CHAIRMAN. In Hanson v. Transportation General, Inc., 245 Conn. 613, 625 (1998), the Supreme Court determined that “the totality of factors” must be weighed in the determination of when a claimant for workers’ compensation benefits has established the jurisdictional requirement of an employer-employee relationship. The trial commissioner in the present case concluded that the claimant had failed to prove that such a relationship existed at the time of his injury, and therefore dismissed the claim. The claimant has appealed arguing that he in fact proved the existence of this relationship. On review, we find the trial commissioner properly applied the test in Hanson, supra. We affirm the Finding and Dismissal and dismiss this appeal.
The commissioner reached the following conclusions after a lengthy formal hearing which yielded 71 findings of fact. The trial commissioner found the claimant neither credible nor persuasive; but found the respondent’s witnesses were credible and persuasive. He found the claimant was injured on April 10, 2006 when he was standing on a metal scaffold that collapsed. The claimant sustained injuries to his left foot, left tibia, left fibula, and two vertebrae. He had been providing carpentry services to the respondent Eldredge Carpentry LLC since late December 2004. At the time of the injury the claimant had been working alone and unsupervised for almost one hour.
The trial commissioner found the claimant had worked for other people in the carpentry field after commencing his relationship with Eldredge. He also concluded the claimant brought his own tools and equipment to the job site, including a circular saw and screw gun, and did not receive paid vacation, paid sick time, paid health insurance or pension benefits during his time at Eldredge Carpentry LLC. The claimant filed his federal income taxes as a self-employed sole proprietor and Eldredge Carpentry did not withhold taxes, and instead provided the claimant with a Form 1099. The medical records from the medical facilities where the claimant treated for the injury—Middlesex Hospital and Lawrence and Memorial Hospital—listed the claimant as self-employed. The trial commissioner also found the claimant had obtained a “commercial general liability” insurance policy.
The trial commissioner reviewed the testimony of Douglas Eldredge, the respondent’s principal. He testified he served as job supervisor and directed the claimant as to which job site to work on. He also testified that if someone failed to show up for work without notifying him that they would no longer work for him. He expected workers to be at jobsites from 7:00 a.m. to 3:30 p.m. but flexibility was available for workers not free during those hours. The workers were responsible for keeping track of their own hours and were paid for the hours they worked. He also testified subcontractors obtaining a personal job would inform him they were going off to perform that work; the claimant’s fellow subcontractors would work side jobs while also working for Eldredge Carpentry, LLC, and the claimant was aware of that policy. He also testified that he told the claimant that when he was hired that he was an independent contractor, and had recommended the insurance agency that wrote the claimant’s liability policy.
Based on these conclusions, the trial commissioner concluded Eldredge Carpentry, LLC did not have control over the claimant as is required to form an employer-employee relationship; in part because he obtained his own liability insurance and used his own tools. The trial commissioner concluded while many indicia of an employment relationship existed, many more indicia of an independent contractor relationship existed. Therefore, the claimant failed to sustain his burden of proof.
The claimant filed a Motion to Correct which was denied in its entirety. He then brought this appeal, arguing that the record could not support a finding that the claimant was an independent contractor.
At the outset, we reiterate that “[o]ur 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). We discussed our standard for review for such cases in Maskowsky v. Fed Ex Ground, 5200 CRB-3-07-2 (July 28, 2008). In Maskowsky, we noted that Hanson, supra, had established a “totality of factors” test, which placed the responsibility to weigh the evidence on the trier of fact.
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 [v. People’s Savings Bank, 207 Conn. 535, 539 (1988).]
In the present case although the trial commissioner clearly recognized that there were many indicia of an employment relationship, he determined that there were many more indicia of an independent contractor relationship.1 This determination goes to the weight of the evidence. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). Our inquiry thus must center on whether the subordinate facts reasonably support this legal conclusion. Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993).
The trial commissioner concluded that claimant had worked for other employers while employed by Eldredge, (Conclusion, ¶ s) which was a dispositive issue in finding independent contractor status in Altieri v. R & M Builders, 3647 CRB-5-97-7 (December 18, 1998). The trial commissioner also found the claimant used his own tools on the job. As the Appellate Court pointed out in Nationwide Mutual Ins., Co., v. Allen, 83 Conn. App. 526, 535-536 (2004), whether the employer furnishes the tools used by the worker is a critical question in determining whether an employer-employee relationship existed. The claimant had also not had taxes withheld and filed his taxes as a sole proprietor. Citing 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) in Bonner v. Liberty Home Care Agency, 4945 CRB-6-05-5 (May 12, 2006), we pointed that “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.’”
Notwithstanding those various indicia of independent contractor status, the test in Hanson is one of the “right of general control.” In that vein, we note that the claimant did not seek a correction of Conclusion, ¶ l; wherein that trial commissioner found on the day of the injury the claimant worked alone and unsupervised for almost one hour before being hurt. The case of Yurevich v. Dimitri Logvinski, 5013 CRB-7-05-10 (September 22, 2006) is on point herein; where the trial commissioner concluded in that case the claimant was working in an essentially autonomous manner at the time of the injury, we upheld his conclusion that the claimant was an independent contractor.
The claimant argues that the outcome in this case is inconsistent with such cases as Merritt v. Nacom, 4098 CRB-3-99-08 (October 16, 2000); Morrissey v. Lannon-Norton Associates, 3085 CRB-4-95-6 (December 23, 1996); Latimer v. Administrator, 216 Conn. 237 (1990); and Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16 (1993). We note that only the Merritt decision postdates Hanson, supra. We also believe that each of these cases can be distinguished on the facts from this case.
In Merritt, much as the present case, we noted that some of the factual findings were supportive of independent contractor status but found the trial commissioner “was entitled to give greater weight to those factors which indicated that the employer had control over the claimant’s work.” One such finding was that in Merritt, the claimant “did not work for any other employer nor did he work on his own.”2 As noted, the factual findings in the present case are not congruent to Merritt on that issue. In any event, if the trial commissioner may give greater weight to facts which support employment status, it is self-evident he may also choose to give greater weight to factors supportive of independent contractor status if he is persuaded by the evidence on the record.
In Morrissey, supra, we note that the trial commissioner denied corrections sought by the respondents that would have placed greater weight on the claimant’s tax filing status. However, we noted “no one factor is controlling in the employee-independent contractor determination.” In Morrissey, the trial commissioner placed greater weight on the claimant’s evidence that the respondent’s principals exercised the right of control, and since sufficient evidence supported this conclusion, the Compensation Review Board was powerless to retry the case.
We need only discuss Latimer and Chute briefly. Latimer was a case concerning the Unemployment Compensation Act and not Chapter 568. The Supreme Court in Latimer also pointed out the plaintiff was among workers who “did not have any significant investment in the materials or tools necessary to perform their jobs.” Id., at 250. The trial commissioner in the present case reached the opposite conclusion. We also note that the Appellate Court in Chute upheld the decision of the trial commissioner and this board that the claimant was an independent contractor. Among the factors supporting that determination was that Mr. Chute used his own equipment and was free to work for other firms performing the same work. Id., at 20-21.
The critical problem herein is that in cases in which a claimant has met his burden of establishing an employee-employer relationship the trial commissioner has found the claimant credible. The trial commissioner specifically found that the claimant in this case lacked credibility. Conclusion, ¶ b. He also found the claimant was “evasive in much of his testimony.” Conclusion, ¶ ppp. The Finding and Dismissal provides a specific reason for these conclusions. In Finding, ¶ 12 the trial commissioner stated the claimant initially testified he did not possess framing tools that would enable him to work independently. In Finding, ¶ 13 the trial commissioner found the claimant subsequently admitted the prior statement was not truthful. See also Finding, ¶¶ 15-17 on the issue of outside employment. Unless the claimant is a credible witness they cannot prevail before this Commission. See Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008) and Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008).3
Since “[e]mployment status is patently a factual issue, and is subject to a significant level of deference on review,” Hanson v. Transportation General, Inc., d/b/a Metro Taxi, 16 Conn. Workers’ Comp. Rev. Op. 57, 3001 CRB-3-95-2 (October 18, 1996), aff’d., 45 Conn. App. 441 (1997), aff’d., 245 Conn. 613 (1998); we must defer to the judgment of the trial commissioner.4 5 We dismiss this appeal and affirm the Finding and Dismissal of the trial commissioner.
Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.
1 The claimant draws particular attention to Conclusion, ¶ uu, “Douglas Eldredge acted as the job supervisor and directed the claimant on which job site to work.” While this conclusion if considered in isolation would be supportive of an employer-employee relationship we cannot re-evaluate the weight the trial commissioner placed on this fact, especially in light of Conclusion, ¶ 1; which concluded the claimant was unsupervised at the time of his injury. BACK TO TEXT
2 In the present case, the trial commissioner reached the opposite conclusion. See Conclusion, ¶ s. BACK TO TEXT
3 The trial commissioner reached numerous findings of facts which indicate that the claimant believed that his status with Eldredge Carpentry was that of acting as an independent contractor. See Finding, ¶¶ 20, 39-45. Each of these findings reference witnesses or documentary evidence where the claimant stated that he was self-employed. While the claimant testified he did not provide this information, Finding, ¶ 46; the trial commissioner did not find him credible. Conclusion, ¶ b. We also noted the claimant had obtained his own liability insurance. Finding, ¶¶ 47-50. We believe the trial commissioner could properly consider the question of the claimant’s scienter at the time of his injury in weighing the “totality of the factors” in this matter. BACK TO TEXT
4 The claimant has argued that since the Finding and Dismissal contains allegedly irrelevant facts that this board must reverse the trial commissioner’s decision. We are persuaded by the respondent Town of Old Saybrook’s argument that since evidence of disability was presented at the formal hearing that it was appropriate to document this in the Finding. Respondent Town of Old Saybrook’s Brief, pp. 12-13. Even to the extent these findings of fact might have been deemed unnecessary, we find their inclusion at worst harmless error. See Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995). BACK TO TEXT
5 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the claimant’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result; Liano v. Bridgeport, 4934 CRB-4-05-4 (April 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002); particularly as the claimant failed to convince the trial commissioner he was a credible witness worthy of belief. Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008). BACK TO TEXT