TYSON v. SOUTHPORT MANOR, 475 CRD-4-86 (5-12-88)

JEAN TYSON, CLAIMANT-APPELLANT vs. SOUTHPORT MANOR, EMPLOYER and HARTFORD INSURANCE GROUP, INSURER and SECOND INJURY AND COMPENSATION ASSURANCE FUND, RESPONDENTS-APPELLEES

CASE NO. 475 CRD-4-86Workers’ Compensation Commission
MAY 12, 1988

The claimant was represented by Stuart Sheiman, Esq.

The respondent-insurer Hartford Insurance Group did not appear nor did they file a brief. The respondent Second Injury Fund was represented by Robert W. Murphy, Esq., and Robert Festa, Esq., Assistant Attorneys General.

This Petition for Review from the April 11, 1986 Finding and Dismissal of the Commissioner for the Fourth District was heard June 26, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew Denuzze.

FINDING AND DISMISSAL

The April 11, 1986 Finding and Dismissal of the Fourth District is affirmed and adopted as the Finding and Dismissal of this tribunal.

OPINION

JOHN ARCUDI, Chairman.

On stipulated facts submitted below, the Fourth District Commissioner ruled the June 16, 1984 injury sustained by Claimant at Southport Manor was not compensable. Claimant has appealed this April 11, 1986 Finding and Dismissal.

Claimant had been registered as a home health aide with the Nurses’ Resgistry [Registry] of Bridgeport and Norwalk. Through that Registry, she became employed by a patient residing at Southport Manor, a convalescent hospital. The patient paid the claimant directly, and Claimant paid a ten per cent (10%) commission to the Registry for the first ten weeks of such employment. After that, Claimant retained all the monies paid by the patient. In addition to the services she was performing on June 16, 1984, Claimant had other employment. If she were held to be an employee of the Nurses’ Registry or Southport Manor, she then would be entitled to a supplement to her compensation rate under the concurrent employment statute.[1]

At issue is whether Claimant was an independent contractor or an employee within the definition of Sec. 31-275 (5), C.G.S. We noted in Gadacy v. Busk, 431 CRD-4-85, 4 Conn. Workers’ Comp. Rev. Op. 1, 2 (1987) the determination whether a claimant “Is an independent contractor or an employee turns on the degree of control exercised by the alleged employer, Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 627
(1961)”. Also, such determination is a question of fact to be decided by the trial Commissioner.

In our review of the record (TR. Oct[.] 2, 1985, pp. 10-13, 22-23), we find testimony indicating no control was exercised over Claimant in the manner of work performance. “If one carries on work for another, and in mode, manner and means is independent of the other’s control, he is an independent contractor”, Bieluczyk v. Crown Petroleum Corp., 134 Conn. 461, 466 (1948) citing Kinsman v. Hartford Courant Co., 94 Conn. 156 (1919). See also Ukers v. Brooks, 372 CRD-7-85
(April 7, 1988), appeal filed, Appeal No. A.C. 6988. As there was evidence to support the commissioner’s Finding and Dismissal of Claim, his decision was not wrong as a matter of law nor was it a conclusion which could not be reasonably or logically reached, Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142 (1972).

We, therefore, affirm the Finding and Dismissal below. Claimant’s appeal is dismissed.

Commissioners Robin Waller and Andrew Denuzze concur.

[1] Sec. 31-310 provides in pertinent part, “Where the injured employee has worked for more than one employer at the time of injury and the average weekly wage received from the employer in whose employ he was injured, as determined under the provisions of this section, are insufficient for him to obtain the maximum weekly compensation rate from such employer under section 31-309 prevailing at the time of his injury, his average weekly wages shall be calculated upon the basis of wages earned from all such employers in the period of concurrent employment not in excess of twenty-six weeks prior to the date of the injury, but the employer in whose employ the injury occurred shall be liable for all medical and hospital costs, a pro rata portion of the compensation rate based upon the ratio of the amount of wages paid by him to the total wages paid the employee in such average week but not less than an amount equal to the minimum compensation rate prevailing at the time of injury and, if he is totally incapacitated, the applicable dependency allowance, if any, due under section 31-308b.”