Pepin v. John T. Carvalho et al.

The claimant was represented by Dennis A. Ferdon, Esq., Anderson & Ferdon, 101 Water St., Norwich, CT 06360.

John T. Carvalho was represented by Peter Keegan, Esq., Jewell & Keegan, 121 Broadway, Norwich, CT 06360.

John T. Carvalho was represented at the trial level by Marguerite Friar, Esq., Kaplan & Brennan, 643 Norwich Rd., Plainfield, CT 06374, who did not appear at oral argument.

The respondent Dayville Fire District was represented by David Schoolcraft, Trowbridge, Schoolcraft & Basine, P.C., 207 Main St., Hartford, CT 06106-5314.

The Second Injury Fund was represented by Loida John Nicholson, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120, who did not appear at oral argument.

The Petition for Review from the March 1, 1995 Finding and Dismissal of the Commissioner acting for the First District was heard October 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review of the March 1, 1995 Finding and Dismissal of the Commissioner acting for the First District. In that decision, the trial commissioner concluded that the claimant was an independent contractor rather than an employee of the respondent employer, and thus was not entitled to benefits under the Workers’ Compensation Act. On appeal, the claimant contends the undisputed facts support a determination that the claimant was an employee of the respondent employer rather than an independent contractor. We affirm the trial commissioner.

In the instant case, the claimant was injured on October 13, 1992 when he fell from a ladder while assisting the respondent Carvalho with a painting job at the Dayville Fire District building. The trial commissioner found that the claimant and Carvalho agreed that the claimant would keep track of his hours; that Carvalho would pay the claimant upon completion in a cash lump sum; that Carvalho would not make any deductions or withholdings from the lump sum payment; that Carvalho left up to the claimant when to report to work; that Carvalho left up to the claimant to decide how many hours to work per day; and that Carvalho did not instruct the claimant in the manner he did the paint job. Accordingly, the commissioner concluded that the claimant was an independent contractor and thus dismissed the claim.

Whether a claimant is an employee or an independent contractor is a question of fact. Pichardo v. East-West Theatre Productions, 12 Conn. Workers’ Comp. Rev. Op. 186, 1553 CRB-3-92-11 (May 2, 1994). “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.” Calamari v. Durham-Middlefield Interlocal Advisory Board, 12 Conn. Workers’ Comp. Rev. Op. 397, 398, 1577 CRB-8-92-11 (Sept. 8, 1994), see also Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16, 19-20, cert. denied, 227 Conn. 919 (1993).

In the instant case, the trial commissioner found that there were inconsistencies between the testimony of the claimant and Carvalho, and concluded that Carvalho’s testimony was more credible. “We may not disturb the commissioner’s conclusions which are dependent on the weight and credibility accorded the evidence. 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, 349, 1675 CRB-2-93-3 (July 29, 1994), see also Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36,44 (1996). The trial commissioner’s determination that the claimant was an independent contractor rather than an employee is amply supported by the evidence and was neither based on impermissible or unreasonable factual inferences nor contrary to law. Accordingly, it must stand. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In support of his appeal, the claimant contends that the trial commissioner improperly denied his motion to correct. Specifically, the claimant contends that his motion to correct included undisputed facts which show that Carvalho had the right to control the method of the claimant’s work. We disagree. The claimant’s requested findings, such as a finding that spray painting was not an acceptable method of painting and a finding that Carvalho provided the claimant with tools to scrape the old paint, would not alter the trial commissioner’s decision. (See Findings No. 18 and 23-31). On review of the denial of a Motion to Correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion to Correct also may be denied properly where the legal conclusion of the commissioner would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). As the claimant’s requested substituted findings would not alter the commissioner’s conclusion, we find no error in the commissioner’s denial of the claimant’s motion to correct.