Kramer v. Ronald Johnson d/b/a Northeast Roofing

The claimant was represented by David Koskoff, Esq. P.O. Box 370, 144 West Main Street, Plainville, CT 06062.

The respondent-employer was represented by E. Timothy Sullivan, Jr., Esq., Gaffney Law Associates, One Liberty Square, New Britain, CT 06051.

The Second Injury Fund was represented at the trial level by Howard Levine, Esq., and Carolyn Signorelli, Esq., formerly Assistant Attorney General, 55 Elm Street, Hartford, CT 06106. No papers were filed on the Fund’s behalf in relation to this appeal.

This Petition for Review from the November 17, 1994 Finding and Award of the Commissioner acting for the Sixth District was considered on the basis of papers submitted for oral argument on September 22, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the November 17, 1994 Findings of Facts and Award of the Commissioner acting for the Sixth District. In its appeal the respondent presents the following issue for review; whether the trier erred in concluding that the claimant was an employee of the respondent at the time of the injury. The more narrow question presented for review is whether the facts as found by the trier legally support the trier’s conclusion.

The claimant claims that he injured his right eye while in the employ of the respondent and while working a roofing job. The trier found that the respondent requested and authorized Mr. Steven Casale to find workers for a roofing project and that Mr. Casale, a friend of the claimant, procured the claimant as a worker for the roofing project. The trial commissioner heard the matter and concluded that the claimant’s injury arose in and out of the course of his employment with the respondent-employer.

The respondent took the instant appeal and moved to correct, inter alia, the trier’s finding in paragraph #6 which states: “The claimant and respondent-employer never discussed a rate of pay and had no agreement as to the rate of pay but the respondent -employer expected to pay whomever Mr. Casale recruited to help on the project, and the claimant expected to be paid for his services.” The respondents contend that there is no support in the evidentiary record for the trier’s finding noted above. We agree. The entire record on review consists of two transcripts of formal hearings held August 21, 1990 and April 14, 1994. It does not appear that any exhibits were entered into the record.

Specifically, we note that the part of the above quoted finding stating “the respondent expected to pay whomever Mr. Casale recruited to help on the project” is without evidentiary support. Our review of the record indicates that Mr. Casale testified that his hiring practice was to meet with a potential worker so as to appraise his physical condition and coordination. (Transcript of April 14, 1994 Formal Hearing pp. 14-19.) While we understand that we do not engage in a de novo review and should not usurp the trier’s province as to factual findings, we refer to the above as demonstrative of the lack of support in the record for the trier’s finding in paragraph #6 of the Finding and Award. Thus, it is not clear whether the respondent and the claimant had an agreement as to claimant’s employment in the roofing project. Whether an employer-employee relationship exists between the respondent and the claimant is a threshold jurisdictional question which must be answered. Castro v. Viera, 207 Conn. 420 (1988). The employment agreement may be express or implied. Olivieri v. Bridgeport, 126 Conn. 265 (1940).

However, the existence or non-existence of an employment agreement is not necessarily determinative of whether an employer-employee relationship exists. Hynd v. General Electric Co., 10 Conn. Workers’ Comp. Rev. Op. 77 1151 CRB-4-90-12 (April 3, 1992). Our review of the trier’s Finding and Award fails to find where the trier made any factual findings or conclusions as to whether the putative employer had control over the alleged employee’s work activities. Our Workers’ Compensation law has long held that the test to determine whether one is an employee or independent contractor turns on the issue of control. “One is an employee of another when he renders a service for the other and when what he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained.” Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961). Without a finding on the matter of control and in light of the contradictory findings as to whether there was an employment agreement a remand is necessary.

We therefore remand the instant matter to the Sixth District for further proceedings.