LEMA v. EOANOU, NO. 5056 CRB-4-06-2 (2-13-2007)

JOSE F. LEMA, CLAIMANT-APPELLEE, v. JOHN EOANOU EMPLOYER NO RECORD OF INSURANCE RESPONDENT-APPELLANT, and SECOND INJURY FUND RESPONDENT-APPELLEE

CASE NO. 5056 CRB-4-06-2 CLAIM NO. 400054861CONNECTICUT COMPENSATION REVIEW BOARD CONNECTICUT WORKERS’ COMPENSATION COMMISSION
FEBRUARY 13, 2007

Errata Sheet
Please replace page six of the Compensation Review Board’s Opinion dated January 29, 2007 with the attached page six.

______________________________ John A. Mastropietro, Chairman Compensation Review Board Workers’ Compensation Commission

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. DonOliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003). “The fundamental distinction between an employee and an

[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[4]. 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. IndustrialCommission, 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[4]. 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. SeeLiberty Mutual Insurance Co. v. Neal, 191 S.E. 393 (Ga.App. 1937).