Wallace v. Waterbury Republican & American

The claimant was represented by Edward Dodd, Esq., The Dodd Law Firm, 1781 Highland Avenue, Suite 105, Cheshire, CT 06410.

The respondents were represented by Diane D. Duhamel, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

The Second Injury Fund was represented by 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 December 7, 2009 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 21, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jack R. Goldberg and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from a Finding and Dismissal determining that she was acting as an independent contractor for the Waterbury Republican-American when she sustained her work-related injury. We find the facts found by the trial commissioner are grounded in the evidence and support this conclusion. We further find that based on those facts stare decisis requires us to uphold this decision. We affirm the Finding and Dismissal and dismiss this appeal.

The trial commissioner reached the following findings of fact at the conclusion of the formal hearing. The claimant works at the Southbury Training School and began delivering newspapers as an additional job. She had an agreement with the respondent commencing on January 1, 2008 to deliver their newspaper, although the trial commissioner found she had delivered the paper for about 18 months prior to that date. She did not have formal training in delivering newspapers but an employee of the respondent accompanied her for about one and a half weeks. Her route consisted of 130 to 135 customers solicited by the respondent. She picked the papers up at a distribution center in Watertown every morning and was responsible to have the papers delivered to the customer’s address by 6:30 a.m. Monday through Saturday and by 8:00 a.m. on Sundays.

The claimant received her papers every morning at the distribution center, along with rubber bands or bags which may be necessary to keep the paper from blowing away. The claimant was not required to rubber band papers, but chose to do it. She purchased the rubber bands and bags from the respondent. The respondent advised her where the papers were to be delivered. The respondent bills the customers for their papers and most customers pay the respondent directly, although the claimant testified she collected the money herself from 17 customers. The claimant was compensated for her services by being paid a commission between the wholesale and retail price of the newspaper. The respondent paid the claimant every two weeks and did no withholdings. The claimant obtained her own disability insurance policy from Aegis Security Insurance Company through the respondent. She was required to have an accident policy in order to deliver papers for the respondent, but she was not required to purchase the policy from the respondent.

The claimant was responsible for using her own personal automobile to deliver the papers. The respondent did not reimburse her for any vehicle-related expenses, such as mileage, gas, or insurance. The claimant could obtain someone else to deliver the newspapers, and indeed, her husband delivered the newspaper on Saturdays to give her a day off. In addition, the claimant could choose anyone she wanted to fulfill her delivery responsibilities. She was responsible for deliveries even when she was ill. She occasionally had her sister substitute for her on the route and the respondent did not know when this would occur, nor did they need to provide permission. The claimant could pick up the papers at the distribution center at any time between 2:00 a.m. and 5:00 a.m. She obtained bags and rubber bands from the respondent because they cost less although she could obtain them elsewhere. The claimant was responsible to pay the respondent for papers if the customer failed to pay their bill. The respondent forwarded customer complaints to the carrier, but did not provide direction as to how to respond. The respondent would call a carrier after a second complaint but would not take disciplinary action.

The claimant testified that on March 2, 2008, she was delivering newspapers at High Gate Condominiums on Cherry Avenue in Watertown and slipped on ice, breaking her right ankle. She was treated by Charles Raftery, M.D., who performed surgery. She was unable to work either of her jobs during the period from March 2, 2008 through May 21, 2008. She returned to both jobs on May 22, 2008. During the period from March 2, 2008 through May 21, 2008, she had more than one person substitute for her and it was her responsibility to pay them.

The respondent’s circulation director, Edward Winters, testified at the formal hearing. He testified that carriers for the respondent were required to sign an agreement with the newspaper to perform deliveries.1 Carriers were required to have accidental injury policies, but were not required to purchase the policies from the respondent. They were required to be licensed drivers and have automobile insurance. The respondent did not issue payroll checks to delivery personnel with standard payroll deductions, nor does it pay vacation time, sick time, health insurance, or employee benefits. A 1099 tax form was issued to delivery personnel. Delivery personnel were responsible for paying the wholesale cost of delivered newspapers to the respondent even if the customer did not pay for the paper. The respondent had an incentive program for carriers who solicited new customers. They forwarded customer complaints to the carriers, but did not have any type of disciplinary policy. The respondent did not issue identification to delivery personnel, nor require that delivery personnel use any particular equipment or delivery techniques. While the respondent did require the papers be picked up by a certain time and delivered by a certain time it did not place other time constraints on delivery personnel, or require that the newspapers be delivered in any particular order on the route. Delivery personnel could arrange for a substitute to deliver their papers or have someone assist them with the route. Following her March 2, 2008 injury, the claimant did not contact the respondent to determine how she was going to have her papers delivered; nor did Mr. Winters contact the claimant on this issue. Mr. Winters said the respondent would not hire a carrier unless they signed a contract.

Based on this evidence, the trial commissioner concluded the claimant had only one obligation under her Motor Carrier Agreement with the respondent which was that her papers had to be delivered by 6:30 a.m. on Mondays through Saturdays, and 8:00 a.m. on Sundays. It was entirely up to the claimant as to how those newspapers got delivered, and even up to her to decide who ultimately delivered them. As the respondent did not control the methods and manner of delivery the claimant was not an employee of the respondent as defined by § 31-275(10) of the Connecticut General Statutes. On the date of her injury the claimant was a subcontractor of the respondent. Therefore, the Commission lacked subject matter jurisdiction over the injury and the claim was dismissed.

The claimant filed a Motion to Correct seeking six separate corrections to the Finding & Dismissal. The trial commissioner denied these corrections. The claimant has pursued this appeal.

The claimant advances two arguments in support of her appeal. She argues the trial commissioner improperly denied her Motion to Correct. She also argues that the facts on the record would support a finding that she was an employee of the respondent. We find neither argument persuasive.

As to the Motion to Correct, the claimant sought six additional facts added to the commissioner’s finding. She argues the requested corrections were material and undisputed, and therefore, the trial commissioner erred in not granting her motion. We disagree. The record indicates that the claimant’s own testimony was inconsistent with two of the requested corrections. The claimant testified that 17 of her customers paid her directly, and did not pay the respondent. See September 3, 2009 Transcript, p. 24 and Finding, ¶ p. Any correction that sought to establish that “all communication” from customers went to the respondent and that the claimant had “no contact” with customers simply would be unsupported by the claimant’s own testimony.

In any event, the trial commissioner might well have concluded the statements sought to be added to the Findings were not probative or credible. If so, the trial commissioner was not required to grant these corrections. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). We also do not believe that even had these corrections been granted that they would have compelled the trial commissioner to find the Commission had jurisdiction over the injury pursuant to the test in Hanson v. Transportation General, Inc., 245 Conn. 613, 625 (1998). In this situation, when the corrections would not impact the outcome of the decision, a trial commissioner may properly deny the Motion to Correct. D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003).

The second argument advanced by the claimant is that she acted as the respondents’ employee and therefore the Commission has jurisdiction over her injury. She argues that the agreement she had with the respondent gave them the “right to control” her work and this would create an employer-employee relationship. She acknowledges that there is abundant precedent establishing that newspaper carriers are not generally employees (see Stalker v. Derby, 4093 CRB 4-99-7 (August 10, 2000), Ross v. Post Publishing Co., 129 Conn. 564 (1943) and DaSilva v. Danbury Publishing Co., 39 Conn. App. 653 (1995), cert. denied, 235 Conn. 936 (1995)) but argues that such precedent are based on what she deems are outdated concepts and should now be overruled. We disagree.

In Badawieh v. Federal Express Corporation, 5240 CRB-7-07-6 (September 4, 2008) we pointed out that the use of independent contractors as newspaper carriers was consistent with “the organizational paradigm ordinarily applied to this form of business.” Citing the aforementioned Stalker, Ross, and DaSilva cases we pointed out that we are bound by stare decisis and cannot overrule precedent when we are presented with the same issues which have been previously decided. Citing Chambers v. General Dynamics Corp.,/Electric Boat Division, 4952 CRB-8-05-6 (June 7, 2006), aff’d, 283 Conn. 840 (2007) we restated the vitality of this concept.

Our review of the facts as found in this matter do not lead us to the conclusion that there are sufficient material differences between this case and the prior cases governing newspaper carriers to warrant a departure from long established precedents. The claimant’s arguments do not rise to the level of “inescapable logic.”

Nonetheless, even if were we to treat this appeal as a sui generis matter we would still affirm the trial commissioner. The findings he reached indicated that based on the “totality of the factors” test set forth in Hanson, supra, the claimant did not prove the existence of an employer-employee relationship.

The trial commissioner found that the claimant could and did assign her work to someone she chose without the knowledge or approval of the respondent. Finding, ¶¶ 1.x. and 1.y. and Finding,¶ 2.n. The claimant in Maskowsky v. Fed Ex Ground, 5200 CRB-3-07-2 (July 28, 2008) also obtained someone else to perform his contract with the respondent; we held that this was a factor weighing in favor of a finding of independent contractor status based on the precedent in Hanson, supra.

The claimant testified and the respondents confirmed she did not have any taxes withheld from her pay, being issued a 1099 tax form. Finding, ¶¶ 1.u. and 2.e. This is an important consideration in determining whether an employer-employee relationship exists as in Bonner v. Liberty Home Care Agency, 4945 CRB-6-05-5 (May 12, 2006), we pointed that often “the decisive factor was the claimant’s tax filings. ‘[T]he claimant considered himself self-employed for tax purposes, paying his own income taxes and social security taxes at self employment rates.’”, citing Dupree v. Masters, 13 Conn. Workers’ Comp. Rev. Op. 316, 1791 CRB-7-93-7 (April 25, 1995), aff’d., 39 Conn. App. 929 (1995)(per curiam).

We also note various findings indicating the claimant was unsupervised in her work and had a great deal of flexibility in determining as to how to perform her work. See Finding, ¶¶ 1.z., 1.bb., 1.ii., 2.l., 2.m., and 2.u. Such autonomy led this panel to affirm a finding of independent contractor status in Schleidt v. Eldredge Carpentry, LLC, et al., 5373 CRB-8-08-8 (July 14, 2009). We also note that similar to the claimant in Schleidt the claimant in this case obtained her own disability insurance policy through the respondent, which would suggest the claimant had scienter that the respondent did not consider her an employee. Finding, ¶ 1.q. Finally, we note that the claimant used her own car for her deliveries and received no reimbursement. Finding, ¶ 1.dd. Whether a respondent provides the tools and equipment used by a worker is often dispositive of whether the worker is an employee or not, see Vignali v. Richard Renner, 5473 CRB-5-09-6 (June 17, 2010); in the present case it appears the claimant was primarily responsible to obtain the necessary items to perform her work, even purchasing the rubber bands and bags for the papers. Finding, ¶¶ 1.hh. and 1.ii. Considering all these findings, we cannot conclude that the trial commissioner reached a clearly erroneous decision that the claimant failed to establish the “totality of the factors” delineated in Hanson, supra, supported a finding of an employer-employee relationship.

In a case earlier this year dealing with whether a claimant was an independent contractor, Cruz v. 31 Catherine Avenue, LLC, 5445 CRB-5-09-3 (March 2, 2010), appeal pending, A.C. 32064, we pointed out “[e]mployment status is patently a factual issue, and is subject to a significant level of deference on review.” We extend such deference in the present case, and thus dismiss this appeal and affirm the Finding & Dismissal of the trial commissioner.

Commissioners Jack R. Goldberg and Christine L. Engel concur in this opinion.

1 The respondents submitted a Motor Route Carrier Agreement as Exhibit 1. BACK TO TEXT