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Badawieh v. Federal Express Corporation

CASE NO. 5240 CRB-7-07-6


















The claimant was represented by Clayton J. Quinn, Esq., The Quinn Law Firm, LLC, 204 South Broad Street, Milford, CT 06460.

The respondents were represented by Margaret Crawford, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The Second Injury Fund was represented by Kenneth Kennedy, Esq., Assistant Attorney General, 55 Elm Street, Hartford, CT 06141-0120.

This Petition for Review1 from the June 14, 2007 Finding of the Commissioner acting for the Seventh District was heard January 25, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.


JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal concerns a dispute over concurrent employment benefits. The claimant suffered a compensable injury during the course of his employment at Federal Express (“Fed Ex”). Fed Ex paid the claimant permanent partial disability benefits at a wage rate incorporating his earnings from delivering newspapers for the Connecticut Post (the “Post”). Fed Ex now seeks reimbursement under § 31-310 C.G.S. for the concurrent employment payments. The respondent Second Injury Fund (the “Fund”) contends that the claimant acted as an independent contractor for the Post, and therefore, was not concurrently “employed” by the Post, thus such earnings are not credited wages for the purposes of concurrent employment. The trial commissioner upheld Fed Ex’s position and the Fund appealed the decision. Upon review, we are concerned that the trial commissioner may not have considered long standing and relevant appellate precedent which impacts this occupation. Consequently, we remand this matter to the trial commissioner for additional findings as to whether an award to the claimant is consistent with existing precedent.

The commissioner found the following facts relevant to this appeal after a contested formal hearing which was held June 6, 2006, with the record closing October 26, 2006. The commissioner found the claimant had injured his back while working for Fed Ex on January 10, 2001 and that a jurisdictional voluntary agreement had been approved March 26, 2001. The claimant proffered documentation as to his earnings at the Post and Fed Ex agreed to incorporate these earnings when they calculated the claimant’s base compensation rate. Fed Ex sought statutory reimbursement from the Fund for $60,265.93 in concurrent employment payments made to the claimant.

The Fund argued that the claimant was an independent contractor for the Post; therefore they were not liable to pay reimbursement to Fed Ex. They argued that the claimant was paid by the number of papers he delivered and no taxes were taken out of his pay. The claimant used his own vehicle to deliver papers and paid for his own gasoline, car maintenance and car insurance. The claimant had to pay for some of the bags he used to bag the newspapers. The claimant paid for general liability insurance on himself through a policy offered by the Post. The Post issued a 1099 form to the claimant at the end of the year concerning his tax obligations and it was the claimant’s responsibility to respond to customer complaints.

Fed Ex advanced a factual argument countering the Fund’s position. They argued the claimant was an employee of the Post because the claimant had to pick up his newspapers from the Stratford warehouse after 2:00 a.m. every morning for delivery to customers prior to 6:00 a.m. The claimant had to deliver papers on a designated route and could not solicit new customers. The claimant was directed to deliver the papers in a bag and sometimes bags with pre-printed logos or promotional materials were required to be used. The claimant was required to field customer complaints after the Post notified him of the issue, and was told by the Post how to resolve the problem. The claimant was also required to follow special delivery instructions for certain clients such as “doorstep delivery” for some homes and driveway or lawn delivery for others, and directed to re-deliver papers as necessary. Fed Ex also pointed out the Post provided its delivery personnel with three days of training and oversight which included periodic route inspections. The Post provided the claimant with a delivery sack to facilitate condominium deliveries, special bags, and a sealing machine. Finally, were the claimant’s car to break down, the Post would send a driver out in a Connecticut Post truck to facilitate delivery of papers; but the claimant would receive his full pay for the route that day.

Based on the foregoing factual record, the trial commissioner applied the “right of general control” test and concluded in a Finding issued June 14, 2007 that the claimant had been an employee of the Post.2 It is not possible to ascertain from the June 2007 Finding whether the trial commissioner considered appellate precedent in reaching her decision. She found that the Post exercised control over the claimant by virtue of the level of training and oversight over his activities. She also found that the claimant had to assist the Post in delivering promotional products by using specific bags for delivery. The Post was a conduit for customer complaints and special delivery instructions, and advised the claimant on how to respond to customer complaints; therefore, this deprived the claimant of control over those aspects of the operation. The commissioner ordered the Fund to honor Fed Ex’s reimbursement request.

The Fund filed a Motion to Correct on July 23, 2007. This motion sought to add to the record a copy of the contract the claimant had with the Post. The Motion to Correct also sought a finding that the contract was the same contract the Post had with the claimant in Stalker v. Derby, 4093 CRB 4-99-7 (August 10, 2000), where the claimant was found to be an independent contractor. The trial commissioner denied the Motion to Correct as untimely and the Fund pursued this appeal.

The Fund’s appeal is based on the argument that the trial commissioner should have extended stare decisis to the precedent in Stalker. The Fund claims that the alleged employer, the Post is identical in this case, the contract is identical and the facts were substantially similar. Therefore, in the Fund’s view, the trial commissioner erred by not reaching the same legal conclusion that the claimant was an independent contractor.

This is a consequential argument, as we have frequently upheld the concept of stare decisis before this board. Bonner v. Liberty Home Care Agency, 4945 CRB-6-05-5 (May 12, 2006) and Chambers v. General Dynamics Corp.,/Electric Boat Division, 4952 CRB-8-05-6 (June 7, 2006), aff’d, 283 Conn. 840 (2007). In Chambers, we referenced the importance accorded to the principle of stare decisis. Application of stare decisis assures predictability and certainty in a court’s conclusions. It provides a body of law that informs parties a tribunal will not reach a different legal outcome when presented with substantially similar circumstances. This creates a reliable structure behind judicial and quasi-judicial decisions which enable parties to organize their affairs upon the belief tribunals will not suddenly reach new interpretations of the law.

In Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998) fn.1, we held “Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, ‘a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. Maltbie, Conn. App. Proc., p. 226.’ Herald Publishing Co. v. Bill, 142 Conn. 53, 62 (1955).” Chambers, supra.

See also Marandino v. Prometheus Pharmacy, 4986 CRB-1-05-8 (September 29, 2006), aff’d in part, rev’d in part, 105 Conn. App. 669 (2008).

In considering this matter as an appellate body, we are concerned that the advocates in this matter at the trial level may not have considered the role stare decisis plays in our system. While the Fund focuses much of their appellate argument asserting the trial commissioner failed to properly apply precedent from Stalker, supra, counsel for the Fund did not expound upon the importance of this precedent at the formal hearing, and indeed the Stalker case was only raised briefly in a single exchange between counsel for the Fund and the trial commissioner. June 5, 2006 Transcript, pp. 29-30.

The next time a party referenced the Stalker decision was when the Fund affixed a copy of the decision to its December 19, 2006 Proposed Findings. The Fund did not submit a trial brief outlining the reasons why the commissioner should have relied on this case, or rebutting the legal arguments presented by the claimant’s August 25, 2006 trial brief or the respondent Fed Ex’s August 11, 2006 trial brief.3 On appeal, the Fund argues that the contract the claimant had with the Post was the same contract the claimant in Stalker had with the Post; but this was not a fact found by the trial commissioner, nor was this fact stipulated to by the parties before the Commission.4

In the present case the trial commissioner made factual findings that the Post engaged in sufficient supervision and direction of the claimant’s work activities to create an employer-employee relationship. This, however, does not end our inquiry as we must ascertain if the trial commissioner applied the appropriate appellate precedent to the facts presented at the hearing. Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007).

In reviewing the law governing independent contractors, we find there has been decades of precedent regarding the newspaper delivery business relevant to the issues herein which may not have been considered by the trial commissioner as authority in her Finding and Award. This precedent dates back 65 years to the Supreme Court decision in Ross v. Post Publishing Co., 129 Conn. 564 (1943). The decision herein cannot be made on a “clean slate,” Hummel v. Marten Transport, Ltd., 282 Conn. 477, 496 (2007); as a commissioner must apply binding precedent against the facts presented.

We are concerned there is an absence of discussion by both the parties and the trial commissioner of one relevant appellate decision. The Appellate Court in DaSilva v. Danbury Publishing Co., 39 Conn. App. 653 (1995), cert. denied, 235 Conn. 936 (1995) concurred with this board that a newspaper carrier for the Danbury News Times was an independent contractor.5 This precedent suggests the trial commissioner’s decision in the present case conflicts with the organizational paradigm ordinarily applied to this form of business, and we believe that we must therefore determine whether the trial commissioner’s award can be sustained. In Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007) we stated,

In Sullivan v. Madison-Police Department, 4893 CRB-3-04-12 (June 9, 2006) we explained that although we are deferential to the finding of facts reached at the trial level, our appellate review must consider whether the facts found are supported by competent evidence and are legally consistent with the ultimate outcome of the case.
While this board cannot retry the facts of this case, it must review the sufficiency of the evidence against the legal standards required for granting an award. “The power and duty of determining the facts rests with the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993).


While we are concerned the precedent in DaSilva was not considered in this matter, we cannot conclude the facts are so clearly identical as to justify vacating the Finding and Award and directing judgment for the appellant. Nor are the facts herein clearly so distinguishable that we can infer that had the trial commissioner considered DaSilva she would have still found the claimant was an employee. We note that as a matter of law individuals who sign contracts to deliver newspapers have generally been outside the jurisdiction of our Commission for many decades, starting with the Ross case which the Appellate Court relied on in affirming this board’s decision in DaSilva. See DaSilva, supra, 653-656.

The DaSilva precedent is subject to the rule of “legislative acquiescence.” Hanson v. Transportation General, Inc., 245 Conn. 613, 618-619 (1998). This board is hesitant to extend jurisdiction to a business where judicial precedents finding independent contractor status have been left alone by successive sessions of the General Assembly.6 We also take notice that it may be difficult to readily ascertain when a worker is an employee or an independent contractor, and therefore, prior decisions of this board and the appellate courts are looked to by workers, businesses and the insurance industry for guidance. To the extent a trial commissioner finds this Commission possesses jurisdiction over an injury under these circumstances, we believe a deliberate decision must be reached that the facts presented are dissimilar from those facts which were the basis of binding precedent.

We are simply unable to discern from the record herein whether the ultimate conclusion of the trial commissioner is legally sustainable.

As a result, consistent with such cases as Green v. General Motors Corporation New Departure, 5111 CRB-6-06-7 (August 21, 2007); Risola v. Hoffman Fuel Company of Danbury, 5120 CRB-7-06-8 (July 20, 2007), dismissed for lack of final judgment, A.C. 29056 (October 18, 2007); Abrahamson v. State/Dept. of Public Works, 5054 CRB-2-06-1 (January 9, 2007); Bazelais v. Honey Hill Care Center, 5011 CRB-7-05-10 (October 25, 2006) and we order this matter remanded for additional findings on whether based on the test delineated in the various cases cited by way of stare decisis, the claimant can be deemed to be an employee of the Post.

Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.

1 We note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 The “right of general control” test is delineated in Hanson v. Transportation General, Inc., 245 Conn. 613 (1998). BACK TO TEXT

3 The trial commissioner issued a notice dated June 29, 2006 scheduling a pro forma formal hearing on August 11, 2006 for the submission of findings and briefs. The respondent Fed Ex submitted this material on that date while the claimant sought an extension of time to file findings and briefs until August 25, 2006, which was granted by the trial commissioner. The Fund did not request an extension of time to present this material and did not file its proposed findings until December 19, 2006. The finding states the record closed on August 26, 2006, prior to the Fund’s submission of its proposed findings. BACK TO TEXT

4 The employment contract in Stalker v. Derby, 4093 CRB-4-99-7 (August 10, 2000) was not admitted in evidence during the formal hearing, nor did the Fund file a Motion to Submit Additional Evidence pursuant to Admin. Reg. 31-301-9. The Fund sought to present this issue via an untimely Motion to Correct. The trial commissioner had the right to deny this motion. “Where such a motion is filed late, and an extension of time is not expressly granted, the appellant risks being precluded from filing a Motion to Correct by the trier.” Wooten v. UTC/Pratt & Whitney, 3674 CRB-6-97-9 (May 7, 1999). BACK TO TEXT

5 See Compensation Review Board’s decision 12 Conn. Workers’ Comp. Rev. Op. 360, 1647 CRB-7-93-2 (August 2, 1994). BACK TO TEXT

6 This board is also concerned that due to the procedural posture of this case, the party which had potentially the most important stake in the ultimate outcome was not a party to the formal hearing and did not participate in the appeal. Since this matter was a concurrent employment case under § 31-310 C.G.S., the Fund was responsible for responding to the demand for reimbursement from Fed Ex, and not the Post. While the Fund did present testimony from Post employees at the formal hearing, the Post was not noticed as a party to the hearing nor was the Post represented by counsel at the formal hearing or on appeal. We express our concerns herein that such derivative representation may have due process implications since the precedent set in this proceeding could potentially be applied directly against the Post or other newspapers utilizing carriers for home delivery. BACK TO TEXT


   You have reached the original website of the
   Connecticut Workers' Compensation Commission.

   Forms, publications, statutes, and most other
   information is now located at our NEW site: