Opinion
CASE NO. 1120 CRD-5-90-10
FEBRUARY 26, 1992
The claimant was represented by George Bradford, Esq.
The respondent was represented by Robert Axelrod, Esq., and Norman Teague, Esq. both of Axelrod, Lanzoni Teague.
The Second Injury Fund was represented at the trial level by Diane Duhamel, Esq. and Kathleen R. Smith, Esq., Assistant Attorneys General. No one appeared for the Second Injury Fund at oral argument nor was a brief filed.
This Petition for Review from the October 3, 1990 Finding and Award of the Commissioner At Large acting for the Fifth District was heard August 16, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Robin Waller and James Metro.
OPINION
Respondent's appeal contests the October 3, 1990 Finding and Award of the Commissioner at Large acting for the Fifth District. The trial commissioner there found that the claimant in the course of his employment on October 26, 1987 sustained an injury to his left eye. The only issue on review is whether claimant was an employee of the respondent employer or an independent contractor.
This is mainly a factual determination to be made by the trial commissioner. Francis v. Franklin Cafeteria, Inc., 123 Conn. 320 (1937). As such it rests on the weight and credibility to be accorded the evidence and testimony given below. Wheat v. Red Star Express Lines, 156 Conn. 245 (1968); Rivera v. Guida's Dairy, 167 Conn. 524 (1975). We may not disturb those conclusions unless they are contrary to law, found without evidence or based on unreasonable or impermissible factual interferences. Besade v. Interstate Security Services, 212 Conn. 441 (1989); Fair v. People's Savings Bank, 207 Conn. 535 (1988).
Here respondent argues that the trial commissioner's conclusion was based on unreasonable factual inferences. Our review indicates that the trial commissioner's conclusions rely on the credibility of the witnesses. There was testimony which indicated that claimant was paid on an hourly basis. See claimant's Exhibit B, May 9, 1988 Formal Hearing. Also there was evidence that the tools and materials were supplied by the respondent as well. See Tr. Sept. 28, 1988 at 42. While these facts by themselves may not be conclusive proof of an employer/employee relationship, they are factors which could strongly suggest it. See Ukers v. Brook, 5 Conn. Workers' Comp. Rev. Op. 51, 372 CRD-7-85 (1988) citing Corbin v. American Mills, 27 Conn. 274 (1858); 53 Am Jur. 2d Master and Servant, S2 (1970). See also, Gadacy v. Busk, 4 Conn. Workers' Comp. Rev. Op. 1, 431 CRD-4-85 (1987). Because there was such evidence before the trier we cannot say that his conclusion arose from an unreasonable factual inference nor that the ultimate conclusion was so unreasonable as to justify appellate interference. Bailey v. Mitchell, 113 Conn. 721 (1931).
Pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
We affirm the October 3, 1990 Finding and Award and dismiss respondents' appeal.
Commissioners Robin Waller and James Metro concur.