Nelson v. Deb’s Inc.

The claimant was represented by Michael A. Stratton, Esq., Koskoff, Koskoff & Bieder, P. C., 350 Fairfield Ave., Bridgeport, CT 06604.

The respondents were represented by Dennis Gillooly, Esq., Kennedy & Johnson, 545 Long Wharf Drive, New Haven, CT 06511.

The Second Injury Fund was not represented at oral argument. Notice sent to Ernie Walker, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 2, 1994 Finding of Dismissal of the Commissioner acting for the Third District was heard October 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 2, 1994 Finding of Dismissal of the Commissioner acting for the Third District. She argues on appeal that the commissioner improperly dismissed her claim for compensation on the ground that she was not an employee of the respondent. We affirm the trial commissioner’s decision.

The trial commissioner held a formal hearing limited to the issue of whether the claimant was an employee under § 31-275 C.G.S on or about November 19, 1990. The alleged employer, Deb’s Inc., operates an employment and escort service. The claimant signed an agreement with Deb’s Inc. indicating that she would perform services as an escort and masseuse for that agency. The commissioner found that this agreement acknowledged that she was not an employee of the agency. He also found that the claimant paid her own Social Security and federal income tax, was paid by commission rather than on an hourly basis, received no fringe benefits, and made up her own schedule of availability for escort services. She also provided her own transportation, decided where her services would be performed, and could refuse a client for any reason.

The claimant argued that Deb’s Inc. had exclusive control over the clients its escorts would service, that she was prohibited from setting up her own appointments or hiring assistants, and that there was a list of rules she was required to obey. The commissioner concluded, however, that the claimant “had the right to use her own means and methods and was only responsible for the result of her undertakings and therefore she is considered to be an independent contractor and not an employee of Deb’s, Inc.” The claimant appeals the resulting dismissal of her claim.

The conflict between employee and independent contractor status has recurred throughout the history of workers’ compensation in Connecticut. Dupree v. Masters, 13 Conn. Workers’ Comp. Rev. Op. 316, 316-17, 1791 CRB-7-93-7 (April 25, 1995). “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.” Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 287-88, 1720 CRB-4-93-5 (April 21, 1995), quoting Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961). An independent contractor, on the other hand, “is 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.” Muniz, supra, 288, quoting Chute v. Mobil Shipping, 10 Conn. Workers’ Comp. Rev. Op. 183, 186, 1321 CRD-7-91-10 (Sept. 1, 1992), affirmed, 32 Conn. App. 16 (1993). The key factor in establishing employee status is thus the employer’s right to control how and when the employee’s work is done. Carrier v. Voisine, 2093 CRB-3-94-7 (decided Jan. 11, 1996).

In this case, the trial commissioner found that the results and methods of the claimant’s services were under her personal control, and ruled that she was not an employee of Deb’s, Inc. Like all factual issues decided by a trial commissioner, this conclusion is subject to deference on review. A commissioner’s findings can be disturbed only if they contain facts found without evidence or fail to include admitted and undisputed material facts. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 71, 1859 CRB-5-93-9 (May 12, 1995). In making his findings, the trial commissioner has the authority to weigh the evidence presented by the parties, and to decide how much credibility to give the testimony of the witnesses. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb, supra. This board does not retry the facts upon review. Id. Further, the conclusions drawn by the commissioner from those facts must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from those facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Adzima, supra, 118.

The claimant’s attack on the factual findings is twofold. She alleges that certain undisputed and material facts were omitted from the findings by the trial commissioner, while other findings had no basis in the evidence, or were based solely on incompetent evidence. The alleged “incompetent evidence” is a copy of an agreement introduced by the respondents (Exhibit 1), which the claimant argues was not properly authenticated. After the claimant introduced as her Exhibit A a document entitled “Employment Contract” dated September 28, 1989 and signed by her, the respondent introduced another document simply labeled “Agreement.” The claimant said she did not recognize the agreement, which was signed “Julie Nelson of East Haven” and was not dated. However, she acknowledged that her signature was on the document, and that she lived in East Haven in 1990. She had listed her hometown as Guilford when she signed the “employment contract” in 1989.

Section 31-298 states that in conducting hearings, the commissioner “shall not be bound by the ordinary common law statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” The trial commissioner has broad discretion to determine the admissibility of evidence, and his rulings will not be set aside absent an abuse of discretion. Merchant v. J.S. Nasin Co., 9 Conn. Workers’ Comp. Rev. Op. 122, 123, 952 CRD-2-89-11 (May 1, 1991). Indeed, the claimant’s attorney himself noted at the formal hearing that it was an administrative proceeding and that the parties “shouldn’t be bound terribly to the rules of evidence.” (Transcript, p. 47).

Although no one directly testified on behalf of the authenticity of the document in question here, the circumstances supported its admission. The claimant acknowledged her signature, and the absence of a date on the agreement was made less relevant by the presence of an East Haven address. Further, the previous “Employment Contract” signed by the claimant expired by its terms on September 28, 1990. The trial commissioner certainly could have inferred that a new contract was necessary at that time, and that the claimant in fact signed one. We will not reverse his evidentiary decision here.

The claimant’s brief describes eleven paragraphs in the commissioner’s findings as unsupported by the evidence. In fact, the agreement we just discussed and the testimony of Liz Meyers, a former co-worker of the claimant, lend adequate evidentiary support for most of these findings. Much of the claimant’s objection turns on the commissioner’s decision to credit Meyers’ testimony over conflicting testimony given by the claimant herself. As we have already stated, the trial commissioner is entitled to make such a decision. We cannot make our own assessment as to the reliability of testimony on appeal. The fact that Meyers’ position at Deb’s, Inc. may have been slightly different than the claimant’s did not render her legally unfit to testify as to the details of the escort-agency relationship there. The corrections sought by the claimant were not granted by the trial commissioner, and there is support in the record for his decision.

Similarly, the “undisputed facts” asserted by the claimant were primarily based on her testimony and the original “Employment Agreement,” which by its terms had expired before the date of the claimant’s injury. The trial commissioner was not required to give credence to the claimant’s testimony, even where uncontradicted. As for the list of “rules” entered into evidence by the claimant, the commissioner could reasonably have found that the claimant controlled the results and methods of her work even if she adhered to certain requirements. Furthermore, things like client confidentiality requirements and noncompetition clauses do not mandate a different outcome to this case.

The trial commissioner’s decision is affirmed.

Commissioner Amado J. Vargas concurs.

ROBERTA SMITH TRACY, COMMISSIONER, DISSENTING. I believe that the trial commissioner drew an inappropriate conclusion from the evidence in this case, and I would reverse his decision. The first agreement signed by the claimant referred to her as an employee, while the second stated that the escort “acknowledges that she is not an employee of the agency.” The terminology used by the agency in preparing such an agreement is not determinative of the presence or absence of an employment relationship, however. Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 288, 1720 CRB-4-93-5 (April 21, 1995). The real test is the degree of control over the claimant’s work that the respondent has the right to exercise.

Under each of the aforementioned agreements, Deb’s, Inc. had the right to control the clientele, appearance, and conduct of its escorts, and the right to review the performance of the escort was expressly retained. Furthermore, escorts were required to contact the agency at the beginning and end of each appointment, and were prohibited from dealing with clients outside the agency. Escorts were also provided with credit card machines, and credit card payments were made through and processed by the agency. The facts of this case demonstrate that Deb’s, Inc. exercised a degree of control over its escorts characteristic of an employment relationship. I therefore dissent from the majority’s opinion.