CASE NO. 84-CRD-7-81Workers’ Compensation Commission
SEPTEMBER 15, 1982
The Claimant-Appellant was represented by Joseph N. Tauber, Esq.
The Respondents-Appellees were represented by James F. Bingham, Esq.
This Petition for Review from the August 19, 1981 Decision of the Commissioner for the Seventh District, was argued May 21, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, Edward Bradley and Andrew Denuzze.
FINDING AND AWARD
The Finding and Dismissal by the Commissioner below are affirmed and adopted as the Finding and Award of this Division.
OPINION
Claimant-Appellant alleges a compensable right foot injury arising out of and in the course of employment with the Respondents-Appellees July 28, 1979. Respondents deny any employment relationship between the parties.
In April, 1979 the Claimant Papageorge of 100 Colonial Street, Stamford held a white collar position as a salesman with Time Sharing, a computer service. At that time he met the Respondent Julius Magyari who was doing work on a neighbor’s house. He discussed with the Respondent certain plumbing and heating work which claimant wanted performed. Claimant testified at the September 26, 1980 hearing before the Seventh District Commissioner that the Respondent gave him a price for the job and also agreed to permit claimant to work off part of the contract price by performing various tasks on a Liberty Street job being done by Respondents’ firm. However, there was conflicting testimony from the Respondent on these details.
It was the claimant’s testimony that he did actually perform fifty hours of work at $6.00 an hour between July 18, 1979 and September 15, 1979 on Liberty Street. In late September and early October, Respondents performed work on Claimant’s Colonial Street premises, some five or six months after claimant testified the original April, 1979 arrangement had been made. None of the arrangement was ever reduced to writing. Claimant paid Respondents $600.00 for that work and alleged he was entitled to a $300.00 set off on a $900.00 price because of his work performed on Liberty Street. Respondents position was that Claimant still owed $125.00 on a quoted price of $725.00 (Hearing September 26, 1980, T-36).
The Commissioner who had the opportunity to hear the parties concluded that the claimant did actually perform fifty hours of service for Respondents (Finding, Para. 7). However, the Commissioner did not find that these services were performed as an employee (Finding, Paras. 10, 11, 12). Specifically, the Commissioner found that Respondents did not control or direct the claimant’s performance of services or the hours when they were to be rendered.
In his Reasons of Appeal, Appellant alleges that he was taken by surprise by the Commissioner’s finding that claimant failed to sustain the burden of proof to establish employee status and requested the opportunity to present further evidence to satisfy that burden. We find this claim to be without merit. The existence of an employment relationship is an essential element of every Workers’ Compensation claim, and it should never come as a surprise to any worker that he needs to establish the employer-employee tie in order to prevail. Besides, in this particular instance, the attorney for the claimant was acutely aware throughout the proceeding that the establishment of the employer-employee relationship was a principal part of his case as the following excerpts from the testimony show:
“MR. TAUBER: Beyond that ground, Commissioner, I have to prove that he was employed, but I also have to prove that the injury — proving that he’s an employee is not enough. I can prove that and still fail to prove that the injury arose out of and in the course of his employment. Now, unless —
THE COMMISSIONER: — That’s not the issue, is it?
MR. TAUBER: Well, I don’t know. I want Mr. Bingham to waive it if it’s not the issue.
THE COMMISSIONER: All right, Mr. Tauber — bearing in mind, Mr. Bingham, that the issue we’re talking about is whether or not Mr. Papageorge was an employee on the day in question, and I plan to limit a decision to that — bearing that in mind, assuming for the sake of argument that I find that he was an employee, you feel that there’s going to be a serious dispute and would you not agree that if he was an employee that you would stipulate then that if that was so that on July 28, 1979 he suffered an injury which arose during and out of that employment?
MR. BINGHAM: I see no serious problem with that.
THE COMMISSIONER: We are talking about a punctured wound to the right foot.
MR. BINGHAM: He’s already testified to that and he’s already testified it was on the property and he’s already testified that it was in the course of his employment.
THE COMMISSIONER: Right.
MR. TAUBER: But Mr. Julius Magyari testified when I examined him that not only was he not an employee but he never injured his foot on that premises whether he was an employee or not.
THE COMMISSIONER: He says he didn’t see it. He wasn’t aware of it. He didn’t say it didn’t happen. He said he wasn’t aware of it.
MR. TAUBER: I may be wrong, but I think he said he didn’t injure his foot.
MR. BINGHAM: As I understand Mr. Magyari’s testimony, Mr. Magyari’s testimony is and will be that Mr. Papageorge was never his employee.
THE COMMISSIONER: That’s correct.”
(Hearing September 26, 1980, T-24, 25)
Despite Claimant’s clear realization that it was necessary to prove such a relationship, as demonstrated by the testimonial portions reproduced above, nonetheless no evidence was presented on control and direction of the fifty hours worth of tasks performed on Liberty Street. He is not now entitled to another bite at the apple. We therefore have no need to discuss the independent contractor cases cited in the parties’ briefs much as we would relish an overview of the entire array from Thompson vs. Twiss, 90 Conn. 444 (1916) to Kaliszewski vs. Weathermaster, 148 Conn. 624 (1961). The instant case simply turns on a failure of proof.
The decision of the Commissioner is affirmed.
John Arcudi, Chairman, Edward Bradley, Commissioner, Andrew Denuzze, Commissioner