CASE NO. 5445 CRB-5-09-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 2, 2010
31 CATHERINE AVENUE, LLC
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by J. StaceyYarbrough, Esq., Hersh & Crockett, 21 Oak Street, Suite 603, Hartford, CT 06106.
The respondent 31 Catherine Avenue, LLC was represented by Dov Braunstein, Esq., Slavin, Stauffacher & Scott, LLC, 27 Sieman Company Drive, Suite 300W, P.O. Box 9, Watertown, CT 06795.
The respondent Second Injury Fund was represented by 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 Review from the March 16, 2009 Finding & Award of the Commissioner acting for the Fifth District was hearing September 25, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Randy L. Cohen and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. This appeal is based on a single question: did the trial commissioner correctly decide the claimant was an employee of the respondent, and not an independent contractor? We conclude the trial commissioner had sufficient probative evidence to sustain his conclusion that the claimant was an employee of the respondent. As a result, we affirm the Finding & Award and dismiss this appeal.
The trial commissioner reached the following facts at the conclusion of the formal hearing. There was no dispute the claimant sustained serious injuries on June 20, 2005 as a result of a fall down accident at a job site owned by the respondent. The trial commissioner found that the claimant was “unsophisticated and had little in the way of skills or education.” Finding, ¶ 5. The principal of the respondent, Mr. Jason Katz, was found to be a sophisticated real estate entrepreneur engaged in the business of rehabilitating old buildings. The commissioner found Mr. Katz hired individuals such as the claimant to perform manual labor required in these projects. The reconstruction and maintenance of these buildings and structures was supervised by a Mr. Michael Fine, a person hired by Mr. Katz.
The commissioner found that Mr. Katz and the claimant had commenced their business relationship in 2004. The claimant was instructed by Mr. Katz and Mr. Fine as to the work he was to perform. The claimant was paid $10.00 per hour for 40 hours per week and lived rent free in one of the premises owned by the respondent. The claimant did not secure or contract for other jobs while working for the respondent. The commissioner found the respondent provided the majority of the tools used on the job, particularly the roofing job the claimant was performing at the time he was injured. The trial commissioner found the testimony of Theodore Byers, a co-worker of the claimant, corroborated the claimant’s testimony of being an employee of the respondent. The commissioner made further findings as to the extent of the claimant’s injuries and subsequent disabilities resulting from the 2005 accident.
Based on these subordinate facts the trial commissioner concluded the claimant’s position was “credible and persuasive” and he had sustained his burden of proof that he was an employee of the respondent. The commissioner did not accept the respondent’s position in this matter. Finding that the respondent had exercised a sufficient level of “control” over the claimant the commissioner found an employer-employee relationship existed. The trial commissioner also found the respondent lacked workers’ compensation insurance, issued a fine for the violation, and noted that a Supplemental Finding and Award might be necessary so as to have the Second Injury Fund honor the award pursuant to § 31-355 C.G.S.
The respondent filed a Motion for Articulation and a Motion to Correct in response to the Finding & Award. Both motions were denied. The respondent then pursued the present appeal.
The respondent argues that the evidence presented by the claimant was not credible. They also argue that the claimant failed to establish the requisite legal elements for an employer-employee relationship, citing Latimer v. Administrator, 216 Conn. 237 (1990). We find neither argument persuasive.
We believe the respondent’s reliance on Latimer is misplaced. As we recently held in Jordan v. Reindeau & Sons Logging, LLC, 5388 CRB-2-08-10 (December 18, 2009) that case is distinguishable from the precedent governing Chapter 568, since the case turned on the application of the Unemployment Compensation Act. The appropriate precedent on point for determination of whether an employer-employee relationship exists for the purposes of workers’ compensation law is Hanson v. Transportation General, Inc., 245 Conn. 613 (1998). As we pointed out in Jordan, supra, this requires a trial commissioner to apply a “totality of the factors” test.1
While a trial commissioner must review the “totality of the factors” in determining whether an employer-employee relationship exists, we also note “[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). Although the evidentiary burden rests with the claimant in these cases, our appellate review requires us to extend “every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did. Daniels v. Alander, 268 Conn. 320, 330 (2004).” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).
The trial commissioner concluded the claimant proved that he was an employee of the respondent. We must now determine whether probative evidence on the record supported this conclusion based on the factors outlined in Hanson, supra.
The trial commissioner found in Finding, ¶ 11 “the claimant did what he was told to do by the respondent.” The claimant testified that he did a variety of various jobs for Mr. Katz, whom he identified as the principal of the respondent. See October 1, 2007 Transcript, pp. 17-18. The claimant further testified that as to the work on the roof, Mr. Katz directed him as to what material needed to be replaced. Id., at 28-29. This testimony clearly goes to the “right of general control” which is at the center of an employer-employee relationship. Hanson, supra at 619-620.
There was also a finding that the claimant was paid $10.00 per hour for 40 hours per week. Finding, ¶ 12. The claimant testified that he was paid at this rate by the hour, October 1, 2007 Transcript, pp. 19-20, and that he considered himself a full-time employee. Id., at 59. The Appellate Court has stated “payment of a worker at an hourly rate . . . is persuasive evidence that the status of a worker is that of an employee rather than that of an independent contractor.” Nationwide Mutual Ins., Co. v. Allen, 83 Conn. App. 526, 536 (2004). See also, Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003).2 We also note that the claimant testified that he was subject to being fired at will by the respondent. October 1, 2007 Transcript, p. 23.
The trial commissioner also found the respondent provided the majority of the tools and materials used by the claimant on his jobs, particularly the job on June 29, 2005 in which he was injured. Finding, ¶ 14. Whether a respondent provides the tools and equipment used by a worker is often dispositive of whether the worker is an employee or not, see Nationwide Mutual Ins., Co. v. Allen, supra, Jordan, supra, and Kocur v. IQ Technology, LLC, 5210 CRB-1-07-3 (March 3, 2008). The respondent appropriately points out that the claimant did testify that he used his own tools on the job. October 1, 2007 Transcript, p. 26. The claimant also testified that Mr. Katz provided heavier tools which were required for some of the more involved work on the project. October 1, 2007 Transcript, pp. 59-61. Another witness, Theodore Byers, testified the claimant was not using his own tools at the time he was injured. Claimant’s Exhibit G, pp. 47-49. We conclude that the trial commissioner had a basis in the testimony provided to conclude that the claimant did not provide the majority of the tools and equipment used on the job in which he was injured. This is a factual determination reserved to the commissioner to resolve. See Beedle, supra.
We believe the record offers sufficient evidentiary support for Finding, ¶¶ 11, 12 and 14. These subordinate findings clearly support the conclusion in Finding, ¶¶ 25 and 26 that an employer-employee relationship existed and meet the legal standards delineated in Hanson, supra, for such an award.
In their appellate brief and their reply brief the respondent argues repeatedly that “the credible evidence” is supportive of their position. The trial commissioner is the sole arbiter of witness credibility. The commissioner did not accept the respondent’s position, Finding, ¶ 24 and found the claimant credible. Finding, ¶ 23. Since the trial commissioner observed both the claimant and the respondent’s principal, Jason Katz, testify, we are powerless as an appellate body to reach a contrary conclusion. Burton v. Mottolese, 267 Conn. 1, 40 (2003).3 The respondent’s arguments as to various discrepancies in the testimony of the claimant and Mr. Byers are also unavailing. A trial commissioner must determine which evidence before the tribunal he finds probative, Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006), and must resolve any discrepancies he finds in the evidence. Berube, supra. The respondent’s Motion to Correct sought to substitute findings that the respondent’s evidence was reliable and the claimant’s evidence was unreliable. The trial commissioner denied this Motion. We may properly infer that he was not persuaded by the evidence presented by the respondent. See Beedle, supra, and Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010).
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 & Award of the trial commissioner.
Commissioners Randy L. Cohen and Ernie R. Walker concur in this opinion.
1 We discussed the “totality of the factors” test in Maskowsky v. Fed Ex Ground, 5200 CRB-3-07-2 (July 28, 2008).
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).] BACK TO TEXT
2 We note that in some cases, we have found that a worker paid on an hourly basis was an independent contractor, e.g., in Jordan v. Reindeau & Sons Logging, LLC, 5388 CRB-2-08-10 (December 18, 2009). In these cases, we have also credited findings the claimant was using his own tools and was working in an autonomous manner. BACK TO TEXT
3 As the Supreme Court held in Burton v. Mottolese, 267 Conn. 1, 40 (2003), “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 witnesses and the parties; thus [the fact finder] is best able to judge the credibility 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. Id. BACK TO TEXT