CASE NO. 5056 CRB-4-06-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 29, 2007
JOSE F. LEMA
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by Frank Bailey, Esq., Tremont & Sheldon, 64 Lyon Terrace, Bridgeport, CT 06604.
The respondent employer was represented by Harry Hirsch, Esq., 6 Woody Lane, Fairfield, CT 06825.
The Second Injury Fund did not file a brief or attend oral argument as they communicated the issues on appeal did not involve the Fund. Notice sent to Lisa Weiss, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the January 25, 2006 Ruling on Motion to Correct by the Commissioner acting for the Fourth District was heard August 25, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer has petitioned for review from the January 25, 2006 Ruling on its Motion to Correct the December 28, 2005 Finding and Award of the Commissioner acting for the Fourth District. The employer argues that the trier erred by finding that the claimant was the respondent’s employee at the time of his compensable injury. We find no error on review, and affirm the trial commissioner’s decision.
The claimant injured his left arm on September 10, 2003. He alleges that he was employed by the respondent John Eoanou, a real estate developer, at the time of that injury. Eoanou contends that the claimant was acting as an independent contractor and/or a casual employee on that date, and that the claimant’s employment relationship was with the limited liability company that Eoanou managed, Ulbrick Associates, which was not involved with the job at which the injury occurred.
The trier found that, after being hired by the respondent in March 2003, the claimant served as a laborer, carpenter and mason, normally working from 7:30 a.m. to 7:30 p.m. Monday through Saturday. The respondent provided tools for the claimant and directed his work activities, assigning work site locations and a list of tasks. The claimant was paid hourly and in cash. He kept a record of his hours worked, as well as the hours other employees worked, and gave those records to the respondent. During the term of his employment, the claimant worked at a job site in Westport and at the respondent’s residence in Easton.
The claimant’s left arm injury occurred at the respondent’s home, while using a circular saw that belonged to the respondent. The house itself was owned by KNMSG Associates. On the day prior to the injury, the respondent had told the claimant that he would be working at the Easton property on September 10, 2003. The claimant had been helping to build a garage on the property, and had worked there under the respondent’s direction in the past. The respondent was not insured for his workers’ compensation liability on the date of the claimant’s injury.
The trial commissioner found that the respondent controlled the means and methods of the claimant’s work activities, provided him with tools, and paid him by the hour. He determined that the claimant was an employee of the respondent on the date of injury, and ordered the respondent to accept compensability. As the claimant, an Ecuadoran immigrant who came to the United States in 2001, required an interpreter at the formal hearing, the trier also ordered the respondent to reimburse him $375.00 for the cost of the interpreter.1
After the trier’s decision was issued, the respondent sought to amend the findings to show that the claimant was employed by Ulbrick Associates, LLC, rather than John Eoanou. The respondent contended that the claimant had primarily worked on the Westport property for its owner Ulbrick Associates, and had only worked at the respondent’s personal residence in Easton a few instances prior to the injury date. This, it is argued, made the claimant a casual employee with respect to Eoanou, as he was not regularly employed over 26 hours per week while working at Eoanou’s private dwelling. The trier denied the respondent’s Motion to Correct in its entirety, which prompted the instant appeal to this board.
Here on review, the respondent asserts that he was only the manager of Ulbrick Associates, a limited liability company, and owned no membership interest. From his point of view, the claimant also worked for Ulbrick Associates between March and September, 2003, and reported to the respondent as a supervisor in the context of that employment. Eoanou then explains that KNMSG Associates, LLC, which owns the Easton property at which he resides, is a company owned by his wife, Cathy Eoanou, the sole member. When there was no work for the claimant to do at Ulbrick Associates’ Westport property, the respondent would invite him to work at his home in Easton.
The respondent contends that the hours the claimant worked for Ulbrick should not be combined with the hours he worked in Easton. Eoanou states that he paid the claimant from his own funds for the Easton work, and not from the funds of Ulbrick Associates. At those times, the claimant is said to have been an independent contractor, and a casual laborer within the meaning of § 31-275(9)(B)(ii), which excludes from the definition of “employee” a person “whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business.” In Eoanou’s view, the fact that he was a builder by trade is coincidental. While he and his family benefited from the claimant’s work at his residence, no benefit accrued to his business. The respondent also cites § 31-275(9)(B)(iv), which excludes “[a]ny person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week.”
We note initially that an appeal from the denial of a Motion to Correct is not legally identical to an appeal of a trial commissioner’s award. Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002). This board has subject matter jurisdiction over the respondent’s petition for review from the denial of his Motion to Correct under § 31-301(a) C.G.S., but our review is limited to deciding whether the trier erred by denying that motion. We do not have jurisdiction to consider any matters that were not raised in the Motion to Correct, as the respondent did not file a petition for review during the 20 days following the trier’s Finding and Award.
In proceedings before this commission, “[T]he trial commissioner is the sole arbiter of the weight of the evidence, and it is the province of the trial commissioner, as the trier of fact, ‘to accept the evidence which impress[es] him as being most credible and more weighty.’” Id., quoting Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 349 (1999); see also, Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). A trier considers a Motion to Correct the findings in the same capacity. The trier need not grant corrections that fail to affect the outcome of the case, and this board may not retry the matter on review, or independently appraise the evidence underlying the proposed corrections. Robare, supra, citing Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (January 20, 2000), “Thus, where a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such Motion to Correct.” Robare, supra.
We must now decide whether the trier erred by denying a set of proposed corrections that sought to establish the claimant’s primary employment was with Ulbrick Associates rather than the respondent, and that this employment relationship was restricted to the work he performed at the Westport property. The trial commissioner made no findings regarding Ulbrick Associates. If granted, the proposed corrections could have required the commissioner to determine whether the claimant’s separate duties at the respondent’s Easton home were limited in such a way as to place him within one of the exceptions to “employee” enumerated in § 31-275(9)(B)(ii) and (iv).2
Whether a claimant is an employee or an independent contractor is a factual issue that, in situations where the evidence is in conflict, depends upon assessments of evidentiary credibility. Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003). “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.” Id., quoting Hanson v. Transportation General, Inc., 45 Conn. App. 441, 446 (1997), aff’d, 245 Conn. 613 (1998)(citation omitted). As a general principle, a hiring entity retains control over only the results of an independent contractor’s work, while an employer’s will governs the employee “regarding both the fruits of [their] labor and the mode and manner in which [their] services are performed.” Morrissey v. Lannon-Norton Associates, 3085 CRB-4-95-6 (December 23, 1996). Different factors may vary in importance depending on the situation, and the dynamic of the relationship between the individuals in question. Beedle, supra; see also, Merlin v. Labor Force of America, Inc., 3920 CRB-4-98-10 (December 22, 1999)(in deciding whether claimant was employed by temporary employment agency or its client, crucial factor was which entity had right to control and direct temporary help), aff’d, 62 Conn. App. 906 (2001)(per curiam), cert. denied, 256 Conn. 922 (2001).
The respondent’s Motion to Correct proposed that Eoanou was not the claimant’s employer, having instead hired him on behalf of Ulbrick Associates in his capacity as manager of that LLC. The respondent testified that he did not own the Westport property on Ulbrick Lane, and that he had brought the claimant to work there. April 28, 2005 Transcript, p. 32. He also testified that the claimant had come to his home to work on the garage “a couple of days in the week, and we did, maybe possibly two, three days, some half days, some full days.” Id., p. 37. The primary job was always the Ulbrick Lane job. There is no documentation in the record that helps demonstrate a separation between the two employments, however, and there were no written contracts in effect. Transcript, pp. 57-58. The only evidence of a distinction is the respondent’s testimony that he got the money to pay the claimant from Ulbrick Associates, while he paid the claimant out-of-pocket for work done at his Easton home. Id., pp. 37-38. He went on to explain that the members (owners) of Ulbrick Associates, LLC were his son, Nicholas Eoanou, and Jacqueline Ruedemann, and acknowledged that he was the manager of that LLC. Id., p. 43. He also acknowledged that his occupation is as a home builder, and that he has constructed about 20 houses over the last 25 years, with his focus now on developing properties for residential use. There is no question that Eoanou personally made the decision to hire the claimant. Id., p. 42.
The claimant testified that he was paid in cash, by the hour, for all of the work he performed. August 3, 2004 Transcript, p. 13. The respondent decided how much to pay him. Id., pp. 13-14. The claimant normally worked 12 hour days six days per week, and worked with four other men. Id., p. 14. The claimant also testified that the respondent sold him a truck that he had owned personally, for which payments were deducted from the claimant’s pay at the rate of $150 per week. Id., p. 19. He then testified that the day prior to the accident, the respondent had ordered him and the rest of the regular work crew (which he was supervising) to work on the house in Easton, where he directed the work. Id., pp. 22, 41-43. The claimant testified that Eoanou was usually present when the crew was working, indicating how he wanted the work done, unless he was out purchasing materials. April 28, 2005 Transcript, pp. 7-9. He also testified that the respondent had told him that he had other houses he wanted the claimant to work on, though the respondent denied owning other properties. Id., pp. 23, 41.
Based on his denial of the respondent’s proposed corrections, it is clear that the trial commissioner concluded from this testimony that the claimant was employed by Eoanou rather than Ulbrick Associates. The trier was not required to explain why he did not find the testimony about Ulbrick Associates persuasive, credible or material. See Admin. Reg. § 31-301-2. We cannot say on review that the trier’s holding was legally erroneous. The nature of the business relationship between these parties was a factual question that went beyond property ownership. There was a good deal of evidence to support a finding that the claimant was working directly for Eoanou at both the Westport and Easton job sites, where he simply followed Eoanou’s orders regarding where to work. This is supported by the respondent’s right to control the means and methods of his work at both locations, and the absence of any documentation showing involvement by Ulbrick Associates, LLC in this arrangement. If the respondent intended to keep the two engagements separate, he could have made an effort to document that intent through paperwork, and to communicate a better understanding of these arrangements to his workers. Moreover, the weight to be accorded Eoanou’s testimony involved a credibility evaluation, and it is not our place to reassess that testimony on appeal. We thus have no ground to disturb the findings of the trial commissioner.
The trial commissioner’s decision is hereby affirmed. Insofar as payments due the claimant may have been delayed pending the outcome of this appeal, the appellant John Eoanou is ordered to pay interest pursuant to § 31-301c(b) C.G.S.
Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur.
1 The issue of civil penalties against the respondent for noncompliance with the insurance requirements of § 31-284 and § 31-288c C.G.S. was left for a future formal hearing. BACK TO TEXT
2 We observe that, if Ulbrick Associates were determined to have been the claimant’s employer, the legal issues involved would not necessarily be limited to the “casual employee” and “service in or about a private dwelling” exceptions to the definition of “employee.” The manner in which Eoanou directed the claimant to perform work at his residence would raise the possibility that the claimant was lent on hire to Eoanou within the meaning of § 31-292, rather than having entered into a new employment contract. Where a claimant works for one employer and undertakes a job that, unbeknownst to the employee, is for the benefit of another enterprise, there is authority in other jurisdictions holding that the worker cannot become an employee of that enterprise without his knowledge. Larson’s Workers’ Compensation Law, § 67.02. For example, in Creighton v. Snipes, 40 S.E.2d 612 (N.C. 1946), an employee of a lumber partnership was told by one of the partners to begin working on repairs to a sawmill that belonged to one of the partners individually, during which endeavor he was injured. The work at the sawmill was supervised by the foreman of the lumber company, which also furnished the materials for the repairs, and paid the claimant’s wages at the same rate he had previously been earning. The employee was not informed that he would be working for the individual partner rather than the lumber company. The North Carolina Supreme Court affirmed the Industrial Commission’s holding that he remained an employee of the lumber company. See also, Allen Distributing, Inc. v. Industrial Commission, 604 P.2d 938 (Utah 1979)(contractor’s employee, who performed three siding installation jobs for subcontractor at various sites and believed a fourth job was similar in nature, was entitled to rely upon existence of employment relationship with contractor following injury at fourth job, though it was actually independent work performed by subcontractor; Court ruled it unnecessary to invoke lent employee principle).
Also, an employee who has been directed by a superior to undertake a private errand or purpose may still be functioning within the scope and course of his employment. Though Connecticut has no reported workers’ compensation cases that are on point, most jurisdictions that have considered the issue have compensated employees injured when a person in authority has directed them to do work outside their normal duties for the private benefit of the employer or superior. Larson’s Workers’ Compensation Law, § 27.04. As Professor Larson’s treatise observes, the employer-employee relationship is the source of the authority by which the unusual task is assigned. The employee then faces a dilemma: if he complies with the order, he risks forfeiting compensation protection, but if he does not comply, he risks being fired. The fact that the use of an employee for a private job may be an abuse of authority has been held not to affect his right to compensation. See Liberty Mutual Insurance Co. v. Neal, 191 S.E. 393 (Ga. App. 1937). BACK TO TEXT