Morrissey v. Lannon-Norton Associates

The claimant was represented by Francis Ficarra, Esq., 1375 Kings Highway East , Suite 425, Fairfield, CT 06430.

The respondent was represented by William Burke, Esq., Law Office of Dominick F. Burke, 1432 Post Road, Fairfield, CT 06430.

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

This Petition for Review from the May 31, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard May 24, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the May 31, 1995 Finding and Award of the Commissioner acting for the Fourth District. It argues on appeal that the commissioner erred by finding that the claimant was its employee for the purposes of the Workers’ Compensation Act, rather than an independent contractor. We affirm the trial commissioner’s decision.

Our law distinguishes an independent contractor and an employee primarily by the degree of control that the alleged employer has over the claimant. An independent contractor relinquishes control to his employer over the results of his work only; an employee, however, is subject to the will of his employer regarding both the fruits of his labor and the mode and manner in which his services are performed. Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961); Carrier v. Voisine, 2093 CRB-3-94-7 (decided Jan. 11, 1996); Chute v. Mobil Shipping, 10 Conn. Workers’ Comp. Rev. Op. 183, 186, 1321 CRD-7-91-10 (Sept. 1, 1992). As long as there is evidence to support a commissioner’s decision that one is an employee rather than an independent contractor, we will not disturb that conclusion, for the weight and credibility of the evidence is for the trial commissioner to evaluate. Carrier, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); Hynd v. General Electric Co., 10 Conn. Workers’ Comp. Rev. Op. 77, 1151 CRB-4-90-12 (April 3, 1992).

In this case, the claimant was working as a carpenter for the respondent on July 29, 1991 when he injured his left finger and thumb. The commissioner found that the claimant’s services were secured by the respondent in the late spring or early summer of 1991. The respondent agreed to pay the claimant $15.00 per hour to perform carpentry services. The claimant brought his own tools, although he also used tools belonging to the respondent at the job site where he was hurt. His work was assigned by one of the respondent’s principals at each of the three job sites he worked at, and a principal would check almost daily on the claimant’s progress. He was called a subcontractor by the respondent, and neither taxes nor FICA contributions were withheld from his pay. Instead, the claimant received an IRS Form 1099 from the respondent at the end of 1991, and reported as income amounts paid by the respondent. The claimant did not submit prices for the jobs he was assigned to, and was paid only for hours actually worked. The checks he received left it unclear whether his paychecks included materials purchased as well, leaving the commissioner unable to calculate an average weekly wage.

The commissioner found that the claimant was an employee based on these facts. The respondent filed a Motion to Correct seeking to amend several of the findings, which was denied by the commissioner. A review of those corrections reveals that they were mainly based on the testimony of the claimant and two of the respondent’s corporate officers. The commissioner was not required to grant those corrections, as other inferences could be drawn from the testimony as well. See, e.g., October 31, 1994 Transcript, p. 10-12; see also Webb, supra.

The respondent argues that the claimant reported in his tax return that his contracting business made the exact amount that he realized from his work with the respondent, and cites Chillington v. Spenard’s Roofing, 4 Conn. Workers’ Comp. Rev. Op. 102, 389 CRB-7-85 (June 15, 1987) as controlling authority supporting its position. As we intimated in that case, however, no one factor is controlling in the employee-independent contractor determination. Id., 103. The fact that the claimant filed a tax return in that case reporting a separate roofing business may have supported the commissioner’s decision there, but tax filing strategies do not always determine the presence or lack of an employment relationship. Phelan v. Soda Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 53, 54-55, 1583 CRB-3-92-12 (Dec. 20, 1994). The right to control is ultimately the key legal issue. In this case, the commissioner made findings establishing that the employer did have and did exercise the right to dictate how, where and when the claimant did his work, along with the amount of money he was paid. We cannot say that his conclusion that the claimant was the respondent’s employee was unsupported by the findings. Therefore, we affirm the trial commissioner’s decision.