Zawadzki v. Jay Zaleski, A/K/A Zaleski Caulking

The claimant was represented by Jacek I. Smigelski, Esq., P. O. Box 875, One Liberty Square, New Britain, CT 06050-0875.

The respondent-employer was represented by Andrea M. Melanson, Esq., and Walter R. Hampton, Jr., Esq., Hampton & Hampton, P.O. Box 1008, 166 Albany Trnpk., Canton, CT 06019.

The Second Injury Fund was represented at the trial level by Loida John Nicholson, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120. The Fund did not file a brief and was not represented at oral argument.

The Petition for Review from the February 4, 1994 Finding and Award of the Commissioner acting for the First District was heard February 24, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the First District Commissioner’s February 4, 1994 Finding and Award. In that decision, the trial commissioner concluded that the claimant was performing services for the respondent as an employee rather than as an independent contractor when he was injured on October 18, 1991. On appeal, the respondent challenges the facts found by the trial commissioner and his legal conclusion as to the claimant’s status as an employee. We affirm the trial commissioner.

The distinction between independent contractor and employee status has been a recurrent theme in workers’ compensation law. Hynd v. General Electric Co., 10 Conn. Workers’ Comp. Rev. Op. 77, 1151 CRB-4-90-12 (April 3, 1992). “Our courts have long recognized that independent contractors are not within the coverage of the Workers’ Compensation Act. . . . The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact. . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and method of work. . . . For purposes of workers’ compensation, an independent contractor is defined as one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. . . .” (Citations omitted; internal quotation marks omitted). Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16, 19-20, cert. denied, 227 Conn. 919 (1993).

In this case, the claimant was working on a commercial roofing job when his injury occurred. The respondent was the general contractor, who hired an individual named Pszczola as a laborer. Pursuant to the respondent’s request, Pszczola brought two other individuals, including the claimant, to work on the roofing job. The trial commissioner found that the respondent was present at the job site most of the time, set the claimant’s working hours, agreed to pay the claimant an hourly wage, provided the claimant’s materials and tools, and had the power to discharge the claimant. The trial commissioner further found that the respondent had the power to control, or the right to control, the means and method of the roofing job on which the claimant was working.

Whether or not an individual is an employee is a factual question for the commissioner to decide. Keefe v. Flynn, 10 Conn. Workers’ Comp. Rev. Op. 98, 99, 1169 CRD-2-91-1 (April 23, 1992), citing Francis v. Franklin Cafeteria, Inc., 123 Conn. 320 (1937). We will not disturb such a factual determination unless it resulted from an incorrect application of the law or from an inference illegally or unreasonably drawn from the subordinate facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). It is the trial commissioner, as the trier of facts, who determines with finality the credibility of the witnesses and the weight to be accorded their testimony. Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994). In the instant case, there was ample evidence in the record to support the commissioner’s conclusion that the respondent controlled the means and method of the claimant’s work, and thus acted as an employer of the claimant.