CASE NO. 4491 CRB-3-02-2 CLAIM NO. 300052066Compensation Review Board WORKERS’ COMPENSATION COMMISSION
FEBRUARY 28, 2003
The claimant was represented by Jerome Lacobelle, Esq., 537 Washington Ave., West Haven, CT 06516.
The respondents were represented by James L. Sullivan, Esq., Maher Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.
The Second Injury Fund was not represented at oral argument. Notice sent to Office of the Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120
This Petition for Review from the January 31, 2002 Finding and Award of the Commissioner acting for the Third District was heard August 23, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN.
The respondent employer has petitioned for review from the January 31, 2002 Finding and Award of the Commissioner acting for the Third District. The employer argues on appeal that the trier erred by finding that the claimant was his employee on the date of his injury. We find no error, and affirm the trial commissioner’s decision.
The claimant injured his left shoulder and neck on July 6, 2000, when he fell about 12 feet off a ladder while removing siding from a home on Lake Street in West Haven. He alleged that he was working as an employee of the respondent Don Oliver Home Improvement at the time, while Mr. Oliver, a sole proprietor, contended that the claimant was an independent contractor and, moreover, that he was not working for Oliver on that date. The trier found that, at the time of the formal hearing, he had a light duty work capacity, and that an orthopedic surgeon recommended shoulder surgery for a supraspinatus tear and mild arthropathy.
In his Finding and Award, the trier set forth some of the allegations made by Oliver. These include the contention that the claimant was a subcontractor who had done work for him in the past, that he was paid a set price upon completion of the jobs Oliver gave him, and that he set his own work schedule and provided his own tools. Oliver also said that the claimant had not been hired for the Lake Street job, as other contractors had been retained to perform the siding and roofing work. The claimant, meanwhile, testified that he was being paid $15.00 per hour for a 40-hour work week at the Lake Street site, and that he received his pay every Friday in cash. He was never given an IRS W-2 form or a 1099 form, and presented no payroll or tax records into evidence.
The trial commissioner concluded that the claimant was an employee of Don Oliver Home Improvement on July 6, 2000, and that his last period of employment with Oliver commenced in June 2000. He ordered the respondent, who did not have workers’ compensation insurance on July 6, 2000, to accept liability for injuries suffered by the claimant on that date while doing siding work for Oliver. This included temporary total disability benefits from August 31, 2000 through October 24, 2000 based upon a $600 average weekly wage, and the cost of the recommended surgery, which the trier ordered Oliver to authorize. The issue of civil penalties as per § 31-288 for failure to carry insurance was mentioned by the trier as the subject of a future hearing. The respondent has appealed that decision to this board, along with the denial of his Motion to Correct.
As grounds for its appeal, the respondent challenges the sufficiency of the evidence to support the trier’s conclusion that the claimant was Oliver’s employee on the date of his injury. The claimant’s case is primarily based upon his own testimony, which Oliver contends was rife with internal inconsistencies and contradictory to the testimony given by the other witnesses at the two formal hearings. “The Respondent has produced extensive evidence which refutes the allegations of the Claimant and, most importantly, which show[s] that the Respondent did not have or exercise the requisite degree of control over Mr. Beedle that could lead to the legal conclusion that Don Oliver was [his] employer. . . .” Brief, p. 2. In the respondent’s view, the claimant’s testimony not only lacks the credibility to support a finding of an employment relationship, but also contains admissions that support the legal conclusion that he was an independent contractor rather than an employee.
We begin by reminding the parties that the trier of fact has the sole authority to decide whether the statements of a witness are credible, and where the testimony among witnesses conflicts, which history of events is more accurate. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Gagliardi v. Raimondo Maintenance, LLC, 4012 CRB-1-99-4
(July 20, 2000). If a trial commissioner finds that a claimant has met his burden of proof on a factual issue, this board cannot reverse such a decision unless there is no evidence to support the trier’s factual findings, or unless the trier has omitted material facts that are truly undisputed. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). One such factual issue is whether a claimant is an employee or an independent contractor. Hanson v. TransportationGeneral, Inc., 45 Conn. App. 441, 446 (1997), aff’d, 245 Conn. 613
(1998); Merritt v. Nacom, 4098 CRB-3-99-8 (Oct. 16, 2000). “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.” Hanson, supra, quoting Chute v. MobilShipping Transportation Co., 32 Conn. App. 16, 19-20, cert. denied, 227 Conn. 919 (1993). “An independent contractor relinquishes control to his employer over the results of his work only; an employee, however, is subject to the will of his employer regarding both the fruits of his labor and the mode and manner in which his services are performed. Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629
(1961).” Morrissey v. Lannon-Norton Associates, 3085 CRB-4-95-6 (Dec. 23, 1996). The importance of any given factor to the definition of this relationship can vary among cases, as different situations demand different analyses. Maichik v. State/Div. of Criminal Justice, 4455 CRB-2-01-11 (Oct. 23, 2002).
Though the trier does not expressly state that he discounted the testimony of the other three witnesses in favor of the claimant’s story, it is clear that he assigned the latter far greater weight. In determining whether that testimony was sufficient to support the trier’s legal conclusions, we must recognize that he had the authority to resolve any and all discrepancies in the claimant’s favor, whether they were prior inconsistent statements or remarks contradictory to others’ testimony. We also note that virtually all of the “undisputed facts” cited by the respondent in their Motion to Correct were derived from testimony, which the trier was not required to believe even if those statements were uncontradicted or otherwise corroborated. Duddy, supra;Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). The trier’s denial of those corrections implies that he was not swayed by this testimony, and we cannot invade his sphere of authority by reappraising the evidence and drawing a contrary inference on appeal.Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (Jan. 20, 2000). Thus, we shall assume for the purposes of our review that the claimant’s testimony is wholly credible, with our role being to determine whether his description of his affiliation with Don Oliver Home Improvement sufficed to establish an employment relationship between the two by demonstrating that Oliver had the right to assume control over the means and methods of his work. Hanson, supra, 245 Conn. 620.
The claimant testified that he began working for Oliver about two weeks before his July 6, 2000 injury; March 21, 2001 Transcript, p. 20; and that he was supposed to receive a $15.00 per hour rate of pay, and work eight hours per day, five days per week. Id., p. 21. He admitted to not having worked 40 hours during either of those two weeks, claiming that there was a “weather day or two” in between jobs. Id., pp. 21-22. However, he stated that he was required to be on particular job sites at certain times, as he would not be paid if he left. Id., pp. 25-26. He testified that, before coming to work for Oliver, he had represented that it was necessary for him to “go on the books” and qualify as an employee. Id., p. 22. Oliver had thereafter paid him in cash, without deducting taxes. The claimant explained that he was waiting for Oliver to return from an out-of-town trip before pressing the issue of working “on the books.” Id. During prior terms of employment with Oliver, he had never received an IRS W-2 form or a 1099, and did not pay taxes. Id., pp. 45, 49. Oliver acknowledged that he had never sent his workers 1099 or W-2 forms. August 23, 2001 Transcript, p. 28.
The claimant also expressed his belief that the ladder he fell from belonged to Oliver; March 21, 2001 Transcript. p. 9; and that he had brought only his own tool belt to that job site, with Oliver supplying sawhorses, an aluminum “break” for vinyl siding, a saw and extension cord, and staging poles (scaffolding). Id., pp. 24-25, 41. Oliver had instructed the claimant and the other workers to re-side the house before departing on his trip. Id., p. 26. In terms of owning his own tools, the claimant said that he owned saws and hand tools, but no ladders or sawhorses, and did not have enough equipment to do large-scale jobs. Id., p. 39. One of the respondent’s witnesses, Sherry Cerrone, testified that she had talked to Oliver about having a new roof put in, and he had referred her to the claimant, who proceeded to reach an agreement with her for a flat contract price of $400 for the entire job. August 23, 2001 Transcript, p. 7. The claimant explained that this job had been given to him on the side, because Cerrone was Oliver’s sister-in-law, and confirmed that he was not paid hourly. Id., p. 46.
These statements constitute evidence that would tend to indicate a employer-employee relationship between the claimant and Oliver, insofar as Oliver exercised a reasonable degree of control over the claimant’s workplace doings, and had the right to exercise even more control had he so chosen. If the trier embraced this description of the facts, as we must assume he did for purposes of this appeal, it would constitute sufficient proof to justify a finding that the claimant was an employee within the meaning of the Workers’ Compensation Act. Zawadzki v.Kochanowicz, 10 Conn. Workers’ Comp.Rev.Op. 62, 1120 CRD-5-90-10 (Feb. 26, 1992). It is not up to us on review to focus our attention on the aspects of his testimony (and that of the other three witnesses) that lean in the other direction, and to decide that the balance of the evidence favors a contrary finding that the claimant was an independent contractor on the date of injury. Altieri v. R M Builders, 3647 CRB-5-97-7 (Dec. 18, 1998); Pepin v. Carvalho, 15 Conn. Workers’ Comp.Rev.Op. 350, 3012 CRB-1-95-3 (June 26, 1996), aff’d, 44 Conn. App. 931 (1997) (per curiam). We must respect the commissioner’s authority to accept the claimant’s testimony, and must honor his jurisdictional finding that the claimant was the respondent’s employee.
The trial commissioner’s decision is accordingly affirmed.
Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.
CERTIFICATIONTHIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 28th day of February 2003 to the following parties:
JEROME LACOBELLE, ESQ. 7099 3400 0008 5540 7153
DON OLIVER HOME IMPROVEMENT
JAMES L. SULLIVAN, ESQ.
SECOND INJURY FUND 7099 3400 0008 5540 7146
___________________ Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers’ Compensation Commission