CASE NO. 5388 CRB 2-08-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 18, 2009
PETER R. JORDAN
REINDEAU & SONS LOGGING, LLC
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by Beth A. Steele, Esq., DiFrancesca & Steele, P.C., 811 Boswell Avenue, P.O. Box 548, Norwich, CT 06360.
The respondent employer was represented by Richard T. Stabnick, Esq., Pomeranz, Drayton & Stabnick, LLC, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
Also noticed was Elaine Stuhlman, Esq., Stuhlman & Dombrowski, P.C., 541 Cromwell Avenue, Rocky Hill, CT 06067.
Notice to the respondent Second Injury Fund was sent to Yinxia Long, 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 October 16, 2008 Finding and Dismissal of the Commissioner acting for the Second District was heard August 28, 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. The claimant in this matter has appealed from a Finding and Dismissal of his claim based on jurisdictional grounds. He argues that the trial commissioner erred by determining that he was an independent contractor. He believes the evidence clearly established an employer-employee relationship. We conclude that this matter goes to the weight of the evidence. Both the claimant and the respondent offered substantial evidence supporting their position on the issue of whether the claimant was an employee. The trial commissioner, in apparent reliance upon Hanson v. Transportation General, Inc., 245 Conn. 613 (1998), applied the “totality of the factors” test and determined that the respondent offered the more persuasive argument. We conclude this was a determination reached by weighing the evidence, and thus, it was an issue for the trial commissioner to resolve. We find no legal error, and therefore, affirm the Finding and Dismissal.
The trial commissioner reached the following findings of fact which are pertinent to this appeal. He found that the respondent, Reindeau & Sons Logging, LLC was a business formed by and operated by Brian and Carl Reindeau. The business of the firm was to harvest timber on the property of private landowners. The firm generally booked work one or two years in advance and obtained all the necessary permits. Most of the firm’s contracts involved the selective cutting of trees which were a certain diameter or larger. Reindeau & Sons would retain the services of individuals called “choppers” who used chainsaws to cut down the trees. A principal of Reindeau & Sons would mark the boundary of the area where to have trees cut and would walk the property with the chopper so as to identify what types of trees were to be cut.
In July 2004 the claimant approached Carl Reindeau about working as a chopper. Carl told the claimant he needed to discuss this with his brother Brian. The next day the claimant was hired by the respondent. He was initially paid $175 per day for an eight hour day. He did not receive any overtime pay. In the spring of 2005 the claimant received an unsolicited raise to $200 per day.
The claimant had held a certificate from the State of Connecticut Department of Environmental Protection as a Supervising Forest Products Harvester, but that certificate had been revoked prior to the claimant commencing his relationship with Reindeau & Sons. The respondent became aware the certificate was no longer in force due to the claimant’s failure to attend continuing education and they directed the claimant to obtain the necessary continuing education to get his certificate back, which he did in April and May of 2006. The claimant testified that he was paid for two of the four days he attended the continuing education classes.
The commissioner found the claimant used his own chainsaw while working for Reindeau, paid for the gas used on the chainsaw, and paid to repair the chainsaw. The commissioner found the claimant could decide where on the property he wanted to start cutting trees, and generally started the next day where he had finished the day before. On occasion the claimant worked with other individuals, but generally he worked alone.
Issues related to the claimant’s use of a “Harvester” machine were considered by the trial commissioner. The claimant testified he used this wheeled machine to cut trees, and at times used it every day. The machine was owned by the respondent, and the claimant testified they provided the gasoline and repairs for the machine. Brian Reindeau testified that the claimant asked to use the machine on rainy days, and was not required to use the Harvester. Mr. Reindeau testified the claimant performed the repairs and maintenance on the machine. He further testified the claimant was not penalized for not using the Harvester. Mr. Reindeau testified that due to its frequent breakdown the Harvester was ultimately sold. A review of the claimant’s logs indicated that he used the Harvester at some point in eleven separate weeks.
The claimant’s logs also indicated that he worked predominantly six days per week; however, there were some weeks when he would take a number of days off. The claimant testified that he was required to work five days a week and needed approval to work extra hours. Brian Reindeau testified that the claimant needed to work five or six days a week, but did not have to work any set number of hours, nor was a minimum number of hours guaranteed. Mr. Reindeau testified that he considered the claimant an honest worker and the number of trees he cleared caused the respondent not to question the hours of work he submitted. The claimant was paid $46,000 in 2005 and was paid $44,000 in 2006. He always received a 1099 form from Reindeau & Sons Logging, LLC. The commissioner found the claimant had not filed federal or state tax returns for the past six years.
Evidence was also introduced about a period in which the respondent lined up work for the claimant with another logger. The claimant worked exclusively with the respondent except for a two and one-half to three week period when he worked for another firm. Brian Reindeau testified this was done so as not to lose the claimant’s services, as they had a break between work which the respondent lined up. Mr. Reindeau also said that the claimant was asked at times to work at another job site due to contract termination deadlines.
The claimant also testified on the issue of being self-insured. He testified that in October of 2005 he was advised that he and the other choppers working for the respondent could not work unless they secured workers’ compensation insurance. The claimant obtained a policy for the one year period from October 31, 2005 to October 31, 2006. The claimant did not renew the policy. Carl Reindeau testified that when he retained the claimant in 2004 he told the claimant he was an independent contractor and had to get his own liability and workers’ compensation insurance.
On February 20, 2007 the claimant was hit by a tree while cutting trees for the respondent. There was no one within shouting distance when the injury occurred so the claimant tried to call Brian Reindeau on his cell phone, and then called another chopper working in another section of the property. The claimant’s injury required him to be transported to Windham Hospital by ambulance.
Based on this record the trial commissioner concluded that Brian and Carl Reindeau offered the more credible testimony and the claimant’s testimony was not found to be credible. The claimant was found to be an experienced and licensed “Chopper” capable of doing unsupervised work, and had special training which enabled him to select and cut down trees without supervision. The claimant set his own hours and could come and go as he pleased. He was paid on an hourly basis, but had no deductions for social security or taxes and received a 1099 form. He provided his own chainsaw, and paid for the saw’s gasoline and maintenance. The claimant was required to provide his own workers’ compensation insurance. The respondent did not have the right to control the means and methods in which the claimant selected and cut trees. Therefore, there was no employer-employee relationship present and the Commission lacked legal jurisdiction over the 2007 injury.
The claimant filed a Motion to Correct which was denied in its entirety. The claimant has now pursued the present appeal. He argues that the Motion to Correct should have been granted and that the facts presented establish the presence of an employer-employee relationship. While these arguments were well presented before this panel by counsel for the claimant, we are not persuaded that the trial commissioner’s decision herein was in error.
We note that a trial commissioner is not required to grant corrections to the record that would not affect the overall outcome of the case. Flood v. Travelers Property & Casualty, 5267 CRB-1-07-8 (December 8, 2008). Upon review, we find the majority of the facts sought to be added to the Finding would not have required, as a matter of law, that the trial commissioner conclude that an employer-employee relationship was in existence at the time of the claimant’s injury. Under the precedent in Hanson, supra, the trial commissioner is required to consider “the totality of factors” in determining whether a claimant meets the jurisdictional requirement of an employer-employee relationship. Id., at 625. While the respondent’s interest in maintaining a regular work schedule and the procurement of outside work for the claimant certainly support the claimant’s jurisdictional argument; we may reasonably infer the trial commissioner placed greater weight on other factors he enumerated which supported independent contractor status. Therefore, we are not persuaded that denial of the Motion to Correct constitutes legal error.
In particular, we must uphold the trial commissioner’s determination regarding the relative credibility of the witnesses. The claimant argues that testimony from Brian Reindeau establishes that the respondent conceded the claimant was “an honest person.” Claimant’s Brief, pp. 11-12. The trial commissioner, however, must make an independent evaluation of the credibility of witnesses before the tribunal. 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). Only the trial commissioner was in a position to observe the testimony of the witnesses. Burton v. Mottolese, 267 Conn. 1, 40 (2003). The trial commissioner did cite Mr. Reindeau’s statement that he trusted the claimant’s accounting for his time; Finding ¶ 37. This however, did not prevent the trial commissioner from concluding that on other matters Carl Reindeau and Brian Reindeau offered more credible testimony than that of the claimant. Findings, ¶¶ A and B.
Issues of relative credibility were certainly germane to the disposition of the various issues before the trial commissioner regarding to what extent the respondent’s exercised a “right of control” over the claimant. Hanson, supra. The claimant argues that many issues support finding an employer-employee relationship; such as the extent to which the respondent controlled the claimant’s schedule of work, the frequency and extent of the claimant’s use of the respondent’s equipment and the extent in which the respondent controlled the manner in which the claimant performed his work. The claimant citing DaSilva v. Danbury Publishing Co., 39 Conn. App. 653 (1995), cert. denied, 235 Conn. 936 (1995), points out these are all factual questions. We agree, and note that in resolving such questions of fact the trier must determine which party offered the better testimony. Since the trial commissioner found the respondent’s witnesses more persuasive, we may properly infer that he resolved those questions of fact in an adverse fashion to the claimant.
In particular, the claimant cites two cases as arguing in favor of a finding of an employer-employee relationship: Latimer v. Administrator, 216 Conn. 237 (1990) and Nationwide Mutual Ins., Co., v. Allen, 83 Conn. App. 526 (2004). Both cases are distinguishable on the facts and do not compel a different legal result herein. 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 herein concluded that the claimant used his own chainsaw at work and was solely responsible to maintain and fuel this equipment. Findings, ¶ 21. The Allen case also dealt with the question of whether the claimant used his own tools on the job, determining a significant investment in tools used on the job was consistent with independent contractor status. In Allen, the employer provided all the tools and equipment used by the employee, unlike the present case. Id., at 535-536.2
“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). The claimant did not prevail in this case. The trial commissioner identified a number of factors supportive of independent contractor status. We have already noted the claimant used his own tools on the job. We also note the claimant had did not have taxes withheld from his pay. In Bonner v. Liberty Home Care Agency, 4945 CRB-6-05-5 (May 12, 2006) 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), we pointed that “the decisive factor was the claimant’s tax filings.” We may properly conclude that the trial commissioner placed substantial weight on the claimant receiving a Form 1099 and being directed to obtain his own insurance. We upheld the trial commissioner who reached a similar conclusion in Schleidt v. Eldredge Carpentry, LLC, 5373 CRB-8-08-8 (July 14, 2009). We find no substantive difference herein.
The claimant finally argues that the trial commissioner placed improper weight on the claimant’s state license to work as a commercial forest harvester. We disagree. The trial commissioner could appropriately look to this as evidence that the claimant was capable of working in an unsupervised independent fashion. The trial commissioner concluded the claimant chose the specific trees he cut and the respondent did not control this aspect of the job. As we pointed out in Schleidt, supra, this is a relevant determination for the commissioner’s consideration.
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 a essentially autonomous manner at the time of the injury, we upheld his conclusion that the claimant was an independent contractor.
The claimant in this matter was working in an autonomous manner when he was injured. He received a Form 1099 and did not have taxes withheld from his pay. He was using his own chainsaw on the job. These facts are all relevant to the “totality of factors” considered in determining the existence of an employer-employee relationship. Our inquiry thus must center on whether the subordinate facts reasonably support the legal conclusion herein. Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993). We conclude that they do support the commissioner’s conclusion.
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. 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 We note that a postponement was granted during the pendency of this appeal. BACK TO TEXT
2 We note that the Allen case also states that payment by the hour is consistent with employer-employee status and the claimant in this case was paid by the hour by the respondent. The court in Allen also found, however, that the employer or his agent was always present when the employee was working. Id., at 536. The trial commissioner specifically found the claimant in this case worked in an independent fashion and was distant from any co-workers at the time of his injury. We also find that in cases such as Bonner v. Liberty Home Care Agency, 4945 CRB-6-05-5 (May 12, 2006), we upheld a finding of independent contractor status when a claimant paid by the hour received a Form 1099. BACK TO TEXT