Duntz v. Ales Roofing & Caulking Co.

The claimant was represented by Mark T. Johnson, Esq., Law Offices of Jeffrey C. Nicholas, 373 Prospect Street, Torrington, CT 06790.

The respondent employer was represented by Laura A. Klein, Esq., Hampton & Hampton, 166 Albany Turnpike, P. O. Box 1008, Canton, CT 06019.

This Petition for Review from the January 29, 1998 Finding and Award of the Commissioner acting for the Sixth District was heard June 12, 1998 by a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The uninsured respondent has petitioned for review from the January 29, 1998 Finding and Award by the Commissioner acting for the Sixth District. The trier found in that decision that the claimant was an employee of the respondent and ordered the respondent to pay all indemnity benefits and reasonable medical costs associated with the injuries the claimant sustained while working on February 9, 1996. We affirm the trial commissioner’s decision, and remand this case to the Sixth District for a hearing on penalties under § 31-288 C.G.S.

Initially, we must address the claimant’s February 26, 1998 Motion to Dismiss Appeal. A party must file a petition for review within ten days of the date notice of a trial commissioner’s decision is sent, not received, before this board may consider an appeal under § 31-301(a) C.G.S. Kudlacz v. Lindberg Heat Treating Co., 49 Conn. App. 1, 3 (1998). A petitioner’s failure to file a timely appeal divests this board of subject matter jurisdiction. Here, the respondent filed his petition for review with the Sixth District on February 13, 1998, fifteen days after the trial commissioner’s decision had been entered. We thus lack subject matter jurisdiction to hear this appeal, and grant the claimant’s Motion to Dismiss. See Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994); Vastola v. A.C.E.S., 3448 CRB-3-96-10 (Jan. 16, 1998).

Even if this board had jurisdiction to hear this appeal, the respondent would not prevail on the merits. We cannot retry the facts of a case because the power to determine the facts rests with the trial commissioner. This “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Webb, supra, 71.

The trial commissioner found the following facts. The claimant provided services for the respondent on a continuous basis for approximately one year. While providing such services on February 9, 1996, the claimant was injured as a result of a fall. The respondent contended that the claimant was not an employee, but rather an independent contractor. The trier found that, based on the length of employment, method and manner of payment, ownership of tools, and actual control over the claimant and the work site, an employer-employee relationship did in fact exist. Findings, ¶ G.

The respondent takes issue with the trial commissioner’s determination that the claimant was an employee, not an independent contractor. The proper standard for determining whether one is an independent contractor or an employee is the “right to control” test. Hanson v. Transportation General, 245 Conn. 613 (1998); Reale v. Carducci, 10 Conn. Workers’ Comp. Rev. Op. 158, 1205 CRD-5-91-3 (June 30, 1992). The “right to control” test ascertains the worker’s status by asking whether the employer has the right to control the means and methods used by the worker in the performance of his job. Hunte v. Blumenthal, 238 Conn. 146, 154 (1996). In the instant case, the trial commissioner found that the respondent paid the claimant weekly at the rate of $16.00 per hour for an average of forty hours, negotiated and contracted projects to be performed, directed the claimant with respect to whether work would be performed due to weather, decided when the work day began and ended, what work was to be done on any given day, provided scaffolding and electric power tools, provided all the necessary materials needed to complete the projects, and placed his truck at the claimant’s disposal. Findings, ¶¶ B-F. The trier concluded from the totality of these factors that the claimant was an employee of the respondent. This conclusion was reasonably inferred from the findings, and we do not possess the latitude to reverse such a decision on appeal.

We also note that there appears to be no dispute that the respondent did not have workers’ compensation insurance. Under § 31-288(c), a trial commissioner is required to assess a civil penalty against an employer who has failed to comply with the insurance requirements of § 31-284(b). State v. Champagne, 16 Conn. Workers’ Comp. Rev. Op. 245, 3269 CRB-8-96-1 (June 24, 1997). In the case of knowing and willful noncompliance with § 31-284(b), the employer is also guilty of a class D felony under § 31-288(f). This case must be remanded for findings in accordance with those provisions.

The respondent’s appeal is hereby dismissed, and the case is remanded to the Sixth District for a hearing concerning the imposition of fines under § 31-288.