Opinion
CASE NO. 803 CRD-7-88-12
MAY 14, 1990
The claimant was represented by Robert J. Guendelsberger, Esq., and James Smith, Esq.
The respondent Dennis Mitchell d/b/a Superior Drywall was represented by Dennis G. Eveleigh, Esq.
The Second Injury and Compensation Assurance Fund was represented by Cori-Lynn Schaller-Webber, Esq., Assistant Attorney General.
This Petition for Review from the December 10, 1988 Corrected Finding and Dismissal of the Commissioner for the Seventh District was heard February 2, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners James Metro and George Waldron.
1-17. Paragraphs 1 thru 17 of the trial commissioner's December 10, 1988 Corrected Finding and Dismissal are affirmed and adopted as Paragraphs 1 thru 17 of this Division's Finding and Dismissal.
18. The weekly checks referred to in paragraph 17 above had notations characterizing the sums paid as workers' compensation payments.
19-22. Paragraphs 18 thru 21 of the Commissioner's December 10, 1988 Finding and Dismissal are affirmed and adopted as paragraphs 19 thru 22 of this Division's Finding and Dismissal.
OPINION
Was claimant an independent contractor as found below or an employee as contended in his appeal? It is undisputed that claimant injured his right arm February 17, 1987 while performing services at a Daley Development Company condominium site in Darien. It is also undisputed that the respondent Dennis E. Mitchell d/b/a Superior Drywall had contracted with Daley Development to install sheetrock in the units on that site.
At issue is the arrangement between Mitchell and the claimant Rogers. The trial commissioner found that Mitchell had offered Rogers employment status with normal employee benefits and pay at $5.00 per sheetrock panel installed. Rogers instead accepted the alternative offer, i.e. to receive $6.00 per sheetrock panel installed with the understanding he was to provide his own insurance.
During the course of the work in Darien Mitchell exercised no supervision over Rogers' work, but simply indicated each dwelling to be worked on by "tagging" the unit. Claimant supplied all his own tools including "walk-up horses." The respondent furnished or caused to be furnished scaffolding and nails and other necessary materials. Claimant would record the amount of work done often on scrap paper and submit that documentation to the respondent. The respondent paid claimant weekly without FICA or income tax withholding.
Claimant never obtained a tax identification number. At the end of the year respondent furnished claimant a Form 1099, not a W-2 Form. Claimant was free to choose his own work hours. On occasion he would take time off to visit Vermont or New York without asking respondent's permission. Sometimes, claimant would bring his step-son to assist in the work. Respondent paid the step-son on these occasions but deducted the amounts so paid from the sums paid claimant.
Numerous corrections or additions to the Finding were sought by the claimant. We think the Finding should reflect the undisputed fact that weekly checks given claimant by the respondent claimant after the February 17, 1987 injury contained notations characterizing them as workers' compensation payments. Accordingly, we have made that one correction. Those notations by the respondent may very well have been admissions against interest as claimant's attorney has labeled them. However, a spade is still a spade even if the parties call it a bulldozer. It is for the commissioner and not the litigants to determine the facts of the relationship and their legal significance.
Within the past month our Supreme Court again has had occasion to distinguish between an employee and independent contractor status, Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632(April, 1990). Although Silverberg did not itself involve a workers' compensation matter, the opinion reviewed the unemployment and workers' compensation precedents which over the years had fashioned the case law definitions and distinctions involved. In that case the plaintiff was an assistant corporation counsel for the city of Norwich. His remuneration was included on the regular city payroll, and taxes and social security deductions were withheld from his earnings. The plaintiff was also included in the city health and life insurance programs.
The court stated:
We agree with the plaintiff that these factors, under certain circumstances, are characteristic of the relationship of employer and employee. These factors lose meaningful significance, however, in light of the testimony given at trial by the plaintiff.
. . .(W)hile the result of the plaintiff's work may have been subject to the city's control, as with his other clients, the means and methods by which the plaintiff reached the result were not." Silverberg, supra, 640.
Earlier, the same opinion had reiterated "The fundamental distinction between an employee and an independent contractor depends upon the existence or non-existence of the right to control the means and methods of work," Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 179 (1940). In the instant matter the commissioner below who heard the evidence concluded that the respondent did not have the right to control the means and methods of work. There was a sufficient evidentiary basis for that conclusion. Consequently the characterization of sums by respondent as workers' compensation payments loses "material significance."
Besides the corrections sought in the Finding claimant also argues that the matter should have been opened for him to submit additional evidence. We considered such requests in Spataro v. Mattioli Construction, 784 CRD-4-88-10 (Feb. 21, 1990) and Brusca v. Color Tech, Inc., 3 Conn. Workers' Comp. Rev. Op. 81, 50 CRD-7-81(1986). For the reasons there stated we affirm the commissioner's denial.
The appeal is dismissed and the decision of the commissioner is affirmed.
Commissioner James Metro and George Waldron concur.