CASE NO. 5473 CRB-5-09-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 17, 2010
MICHAEL A. VIGNALI, SR.
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by Jack Senich, Esq., The Senich Law Firm, LLC, 390 Middlebury Road, Middlebury, CT 06762.
The respondent was represented by Timothy F. Sullivan, Esq., and Lisa Dumond, Esq., Mahaney, Geghan & Sullivan, One Exchange Place, 6th Floor, Waterbury, CT 06702.
The Second Injury Fund was represented by Lisa Guttenberg Weiss, 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 June 10, 2009 Finding and Award of the Commissioner acting for the Fifth District was heard December 18, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Randy L. Cohen and Jack R. Goldberg.
JOHN A. MASTROPIETRO, CHAIRMAN. This case involves the question of whether the claimant was an employee of the respondent when he sustained a work-related injury. The respondent argues that the claimant was an independent contractor, or in the alternative, was a casual employee. We find these are essentially questions of fact which were resolved by the trial commissioner in a manner adverse to the respondent, Richard Renner. As we find no legal error, we affirm the Finding & Award and dismiss this appeal.
The trial commissioner reached the following findings of fact. The claimant testified that on January 31, 2008 he was injured cleaning out an old auto garage on East Main Street in Waterbury. The property is now known as Renner’s Auto Sales. The claimant testified that he was breaking up some scrap metal with a hammer when a piece flew off and hit him in the eye. He said that he was doing this work at Mr. Renner’s direction, who had hired him to remove all the debris and old paint from the building so it could be remodeled. The claimant testified Mr. Renner had provided him with tools for the job and had directed him to break up scrap metal so it could be loaded into Mr. Renner’s pickup truck. The claimant testified that this injury occurred on the third day he was employed by Mr. Renner.
The claimant testified that he had been hired by Mr. Renner when he was standing on the street in front of the Labor Ready building. Mr. Renner offered the claimant a job, and they agreed on a price of $7.00/per hour for the work. The claimant testified he had worked nine hours each of the first two days on the job with no lunch break. He was driven to and from the job by Mr. Renner. Mr. Renner also picked up a co-worker on the job. The claimant testified that he expected to work for Mr. Renner for about a month, and that he simply performed duties assigned by Mr. Renner. The claimant said that Mr. Renner was sometimes present on the jobsite and sometimes not present. Neither Mr. Renner nor the co-worker was present at the time the injury occurred.
The claimant said that he had undergone two eye surgeries by Neal J. Zimmerman, M.D. and had also been treated by Aryan Shayegani, M.D. The claimant reports he is still lacking sight in his right eye and had been totally disabled from January 31, 2008 to July 23, 2008. On July 24, 2008 Dr. Zimmerman released the claimant with a light duty work capacity. The claimant testified that he had been searching for work since he was released with a light duty rating.
Mr. Renner testified that he had a contract to purchase 449 East Main Street, Waterbury and had not taken title as of the date of the injury. He said he had been in the business of purchasing properties to resell for a profit, although he was not sure that as of January 2008 that was his intent for this property. He also had run other entrepreneurial businesses-pawn shops, car lots and a hair salon.
Mr. Renner confirmed that he had hired the claimant in front of Labor Ready and agreed on a $7 per hour pay rate. He denied driving the claimant to work and said he had not worked the first day he had been hired. Mr. Renner denied providing tools to the claimant. He also said it was premature to project the duration of employment for the claimant when the job started. Mr. Renner said he hired the claimant personally, and not as an employee of an LLC. Mr. Renner did not have workers’ compensation insurance as of the day of the injury.
The trial commissioner found the claimant’s testimony persuasive and credible. He did not find Mr. Renner’s testimony credible. The commissioner found that the respondent controlled the claimant’s work hours and provided tools to the job. As a result, the commissioner concluded the claimant was employed by the respondent on January 31, 2008. The commissioner reached additional findings as to the claimant’s average weekly wage and medical treatment. The respondent was ordered to pay 24.85 weeks of temporary total disability and 25.14 weeks of temporary partial disability benefits. Since the respondent was uninsured, in the event the awarded benefits were not paid within 20 days the Second Injury Fund was directed pursuant to § 31-355 C.G.S. to pay the award.
The respondent did not file a Motion to Correct. Therefore we must accept the validity of the facts found by the trial commissioner, and that this board is limited to reviewing how the commissioner applied the law. Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008). The respondent has filed an appeal from the Finding and Award. The gravamen of his appeal is that the facts on the record did not support the finding that the respondent was an employer as defined in § 31-275(10) C.G.S. The respondent argues that the claimant was either an independent contractor or a casual employee at the time of the injury.
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 v. Transportation General, Inc., 245 Conn. 613, 625 (1998), 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 reviewing the findings of fact cited by the trial commissioner we note that the commissioner specifically found that the respondent controlled the claimant’s hours of work and provided the tools the claimant used on the job. 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, 83 Conn. App. 526, 536 (2004) and Kocur v. IQ Technology, LLC, 5210 CRB-1-07-3 (March 3, 2008). We also believe the trial commissioner’s finding that the respondent directed the claimant as to his hours of work establishes the presence of an employer-employee relationship, as well as the uncontroverted testimony the claimant was paid on an hourly basis. Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003). We therefore reject the respondent’s argument that the claimant was an independent contractor. Sufficient evidence was submitted supportive of an employer-employee relationship by the claimant to satisfy the “totality of the factors” test delineated in Hanson, supra.1
The respondent then argues in the alternative that the claimant cannot be considered any more than a “casual employee” based on the alleged short term nature of the claimant’s employment and the alleged lack of centrality of the claimant’s employment to the respondent’s business. The respondent cites Mangual v. Andrew LeBlanc d/b/a Express Tiles, 4957 CRB-1-05-6 (April 26, 2006) for this position. We do not find Mangual compels this body to overturn the trial commissioner’s factual based decision in this case.
In order for an employee to be found to be a “casual employee” it would be necessary to find “the claimant’s employment was not frequent or systematic and that it was not for the purposes of the respondent’s trade or business.” Mangual, supra. In Mangual we found that an employee who frequently cut lumber and tile for a tile installation business was not a casual employee as “the circumstance of this injury, cutting lumber, is a core function of a tile installation business.” Id.
In the present case the trial commissioner credited the claimant’s testimony that he had worked on the job site for three days when he was injured, and he anticipated working on the project for a month. This testimony meets the prong of the claimant’s work being “frequent or systematic.” The trial commissioner also found the claimant was injured while clearing metal from premises which the respondent was planning to remodel. The trial commissioner credited testimony from the respondent that he was in the business of buying properties for eventual resale. The record also reflects the respondent later moved his used car business into the premises. The trial commissioner could have reasonably concluded that the cleanup work necessary to make the premises suitable for resale or tenancy by Mr. Renner’s business was a core function of Mr. Renner’s business. Therefore this finding meets the second prong of the test in Mangual. Whether the prongs of the test promulgated in Mangual were satisfied was a factual determination by the trial commissioner. As we must defer to the trial commissioner’s judgment on these issues, Hanson, supra, we must affirm the decision of the trial commissioner.
In a case which was factually and legally similar to this case, Cruz v. 31 Catherine Avenue, LLC, 5445 CRB-5-09-3 (March 2, 2010), appeal pending, A.C. 32064, we pointed out “[e]mployment status is patently a factual issue, and is subject to a significant level of deference on review.” We extend such deference in the present case, and thus dismiss this appeal and affirm the Finding & Award of the trial commissioner.
Commissioners Randy L. Cohen and Jack R. Goldberg concur in this opinion.
1 We note that there were two witnesses before the trial commissioner-the claimant and the respondent. The trial commissioner found the claimant credible and the respondent not credible. An appellate panel is not in a position to reverse a fact-finder’s decision regarding the credibility of witnesses. Burton v. Mottolese, 267 Conn. 1, 40 (2003). A respondent who is not a credible witness cannot expect to prevail before this Commission unless the claimant also proves to be unworthy of belief. Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008). BACK TO TEXT