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CASE NO. 4957 CRB-1-05-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 26, 2006
ANDREW LEBLANC D/B/A EXPRESS TILES
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by John Pirina, Esq., Law Offices of Arnaldo J. Sierra, LLC, 215 Washington Street, Hartford, CT 06106.
The respondent, Andrew LeBlanc d/b/a Express Tiles was represented by Marc H. Vidone, Esq., Law Offices of Gerald S. Sack, LLC, 836 Farmington Avenue, Suite 220, West Hartford, CT 06119-1544.
The Second Injury Fund was represented by Brewster Blackall, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 who did not appear at oral argument.
This Petition for Review filed from the June 6, 2005 Finding and Award of the Commissioner acting for the Second District was heard November 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.
JOHN A. MASTROPIETRO, CHAIRMAN. The instant appeal regards the serious issue of whether the claimant was a casual employee, and therefore, not entitled to benefits under Chapter 568. Following formal hearings on this claim before the late Commissioner Spain, the parties mutually consented that the Commissioner acting for the Second District could render a decision on the record, which had already been closed in this matter prior to Commissioner Spain’s untimely demise. On June 6, 2005, the trial commissioner issued a Finding and Award concluding that the claimant was an employee of the respondent. The respondent filed a Motion to Correct, which was denied in its entirety, and then filed his Reasons for Appeal on June 22, 2005. Upon review, we find no error and uphold the trial commissioner’s Finding and Award.
There is little in the way of factual dispute in this claim. The respondent is a full time correction officer who operates a part-time tile installation business. Findings, ¶¶ A-C. From time to time, the respondent employed “ad hoc day to day laborers” in his business. Findings, ¶ 6. The claimant had worked as one of these laborers for a period of approximately four months prior to January 18, 2002. Findings, ¶ D. The respondent admitted the claimant had worked on “five to ten jobs” during this period. Findings, ¶ 8. All tools used by the claimant were provided by the respondent. Findings, ¶ 10. On January 18, 2002, the claimant was holding a two-by-four piece of wood for the respondent and suffered a near amputation of a finger of his non-master hand due to a skill saw accident. Findings, ¶¶ 11-13, 15.
The central issue for consideration is whether the aforementioned scenario falls within the “casual employee” exception to coverage under the statute. Section 31-275(9)(B)(ii) C.G.S. states, “‘Employee’ shall not be construed to include: . . . One whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business.” To establish an exception to coverage, the respondent must establish that both prongs of this test are met, i.e., the claimant’s employment was not frequent or systematic and that it was not for the purposes of the respondent’s trade or business. See Thompson v. Twiss, 90 Conn. 444 (1916) and Vanzant v. Hall, 8 Conn. Workers’ Comp. Rev. Op. 122, 820 CRD-1-89-1 (July 6, 1990), rev’d on other grounds, 219 Conn. 674 (1991).
Based on the respondent’s statements alone, the trial commissioner could have found as a matter of law that the legal standard to classify an employee as “casual” had not been met. The respondent admitted the claimant had worked for him on a significant number of jobs over an extended period of time. See Paragraph 3, Respondent’s Motion to Correct. The claimant’s duties “carrying tile, cleaning the floor and carrying tools” went to the core functions of the respondent’s tile installation business. See Paragraph C, Respondent’s Motion to Correct. Certainly the circumstance of this injury, cutting lumber, is a core function of a tile installation business.
The facts admitted by the respondent were sufficient for the trial commissioner to find that neither prong of the Vanzant test had been met to establish an exception to coverage. Consequently, the respondent’s claim that permitting a trial commissioner to render a judgment on a written record was fundamentally unfair is unavailing. While it is the claimant’s burden to prove their claim Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000), aff’d, 63 Conn. App. 482 (2001), cert. denied, 257 Conn. 905 (2001) in this matter, the trial commissioner could have reached the same decision without reliance on any evidence regarding employment status presented by the claimant.1
As a result, the respondent’s arguments as to the method by which claimant received payment and his alleged belief that he was not an “employee” are immaterial. In any event, the circumstances here demonstrate the ultimate test for deciding whether a worker is an employee under the Workers’ Compensation Act was met. “It is the right of general control of the means and methods used by the person whose status is involved.” Hanson v. Transportation General, Inc., 245 Conn. 613, 617 (1998). Having provided the claimant with his tools and directly supervised his work, our holdings in Davis v. Edward J. Corrigan, 4024 CRB-2-99-3 (July 20, 2000) and Zawadzki v. Zaleski, 14 Conn. Workers’ Comp. Rev. Op. 322, 1973 CRB-1-94-2 (September 15, 1995), aff’d, 43 Conn. App. 909 (1996)(per curiam) are directly on point that an employee-employer relationship existed in this situation, unlike other cases where one was hired to work in an autonomous manner and paid consistent with independent contractor status i.e. Altieri v. R & M Builders, 3647 CRB-5-97-7 (December 18, 1998); Spiwak v. Daniel Gassner d/b/a DGC, 3760 CRB-4-98-1 (April 5, 1999).
The respondent also argues that his Motion to Correct should have been granted. Since the Respondent’s Motion to Correct contains proposed findings of fact legally consistent with the trial commissioner’s ultimate findings of law and legally inconsistent with the respondent’s proposed findings of law, there was no error in the trial commissioner denying the Motion in its entirety.
For the foregoing reasons, the trial commissioner’s Finding and Award are herein upheld. Insofar as any benefits may have remained unpaid pending the outcome of this appeal, interest is awarded as required by § 31-301c(b).
Commissioners Stephen Delaney and Michelle Truglia concur in this opinion.
1 The respondent argues vehemently in his brief that permitting a trial commissioner to render a decision without having conducted the hearing constitutes a significant due process problem since the finder of fact was deprived of the ability to review the demeanor of witnesses as they testified. As noted, under the facts admitted by the respondent the claimant’s demeanor was not a decisive factor in reaching a decision. Even if it could have been a factor, the respondent consented in writing on May 13, 2005 to proceeding in this manner, rather than convening a new hearing. Having received an unfavorable result, he now claims the choice he made was “inherently unfair.” He cites no legal authority supporting this proposition and may be deemed estopped from contesting that to which he knowingly consented. BACK TO TEXT
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