Samuels v. Coconut Enterprises

The claimant was represented by Stephen Bertucio, Esq., Salamone & Morelli, 461 Farmington Avenue, Hartford, CT 06105.

The respondent employer was represented by Dennis Hersh, Esq., Hersh & Ritson, 21 Oak Street, Hartford, CT 06106, who did not appear at oral argument.

The Second Injury Fund was represented by Brewster Blackall, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 25, 1999 Finding and Dismissal of the Commissioner acting for the First District was heard February 25, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has filed a petition for review from the June 25, 1999 Finding and Dismissal of the Commissioner acting for the First District. In that decision the trial commissioner concluded that the claimant failed to sustain his burden of proof that he was an employee of the respondent Coconut Enterprises at the time of his injury on November 14, 1997. In support of his appeal, the claimant contends that the trial commissioner’s conclusion that the claimant was not an employee of the respondent was contrary to the evidence presented and was based upon an unreasonable factual inference.

The trial commissioner found that the claimant injured his hand on November 14, 1997 while using a table saw. Conflicting testimony was presented regarding the claimant’s relationship with the respondent. The claimant testified that in May of 1997, he completed an employment application which he gave to Aubin Miller, and that he commenced employment on May 25 or May 26 of 1997. Aubin Miller d/b/a Coconut Enterprises was engaged in the construction and repair of wooden pallets. The claimant’s duties included repair and construction of pallets, answering the phone, and some customer contact. The claimant further testified that he was paid an hourly rate of twelve dollars per hour each Friday, in cash, by Aubin Miller; that all tools and machinery were provided by the respondent; and that Aubin Miller instructed him daily regarding his daily duties. The trial commissioner specifically found that the claimant’s testimony was not credible.

The trial commissioner considered the testimony of Aubin Miller, which the trial commissioner also did not find to be credible. In addition, the trial commissioner considered the testimony of James Molloy, which he found to be credible. James Molloy testified that the claimant initiated contact with him and that he purchased pallets directly from the claimant on several occasions. He further testified that all phone conversations, negotiations, and deliveries were made by the claimant; that he paid the claimant by check made out to the claimant; and that he had no knowledge of Coconut Enterprises. James Molloy testified that he presumed that the claimant was the owner of the business, although the claimant had never stated this to him.

In support of his appeal, the claimant contends that the trial commissioner erred by inferring from the testimony of James Molloy, that the claimant was the operator of Coconut Enterprises. In the instant case, the trial commissioner concluded that the claimant failed to sustain his burden of proof that he was an employee of the respondent Coconut Enterprises. Based upon all of the evidence, including the testimony of James Molloy, it was not unreasonable to infer that the claimant was the operator of Coconut Enterprises at the time of his accident. Even without this inference, the record amply supports the conclusion that the claimant was not under the direction or control of Aubin Miller d/b/a Coconut Enterprises at the time of his accident.1 We note that the claimant failed to provide any documentary evidence, such as his alleged employment application, time sheets, or payroll records which would indicate that he was acting as an employee of Coconut Enterprises.

Additionally, the claimant argues that the trial commissioner erred in concluding that the claimant’s alleged co-workers lacked credibility. As we have often stated, this board does not retry the facts because the power and duty of determining the facts rests on the commissioner. This fact-finding authority “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) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). 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). In the instant case, the trial commissioner’s findings and conclusions are largely based upon his assessment of credibility, and are fully supported by the record. Accordingly, we may not disturb them.

In further support of his appeal, the claimant contends that the trial commissioner erred in denying his Motion to Correct. Said motion was based upon the credibility of the testimony, and as explained above this is the sole province of the trial commissioner. We thus find no error in the denial of the Motion to Correct.

The trial commissioner’s decision is affirmed.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

1 The trial commissioner may have inferred that the claimant was acting as an independent contractor. See Hanson v. Transportation General, Inc., 45 Conn. App. 441, 446, (1997), aff’d., 245 Conn. 613 (1998) (the determination of the status of an individual as an independent contractor or employee is often difficult and, in the absence of controlling considerations, is a question of fact. . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work). BACK TO TEXT