Opinion
CASE NO. 1321 CRD-7-91-10
SEPTEMBER 1, 1992
The claimant was represented by Jeffrey Ginzberg, Esq. and Arnold Potash, Esq., Perelmutter, Potash and Ginzberg, P.C.
The respondents were represented by Augustus R. Southworth, III, Esq., William T. Blake, Jr., Esq., Gager Henry.
This Petition for Review from the September 24, 1991 Supplemental Ruling on Claimant's Motion to Preclude of the Commissioner of the Eighth District acting for the Seventh District was heard March 13, 1992 before a Compensation Review Board panel consisting of the then Commission Chairman, John Arcudi and Commissioners Frank Verrilli and Donald H. Doyle.
OPINION
The claimant widow contests the Eighth District's denial of her Motion to Preclude and the holding that the decedent was an independent contractor and not an employee. This matter has been the subject of two prior rulings by us. See Chute v. Mobil Shipping and Transportation, Co. 9 Conn. Workers' Comp. Rev. Op. 135, 1007 CRD-7-90-4 (1991); [hereinafter Chute II]; Chute v. Mobil Shipping and Transportation Co., 5 Conn. Workers' Comp. Rev Op. 119, 579 CRD-7-87 (1988). [hereinafter Chute I].
At the onset we note that the respondents also filed a Petition for Review which was received October 16, 1991. Not only was respondents Petition for Review not timely filed under Sec. 31-301(a), their issues raised on appeal on their capacity as cross-appellants were not pursued in their brief and are deemed abandoned. We therefore dismiss the respondents' Petition for Review.
As related in Chute II, claimant is the dependent widow of the decedent, a naval architect who died on May 23, 1985 in a motor vehicle accident occurring on his return to his home from a business trip.
In Chute I, we held that claimant's notice of claim failed properly to identify the claimant and thus the notice of claim "was not a proper notice on which to base a Sec. 31-297(b) irrebuttable presumption of liability." Chute I, supra at 120. We also held that the respondents were entitled to an evidentiary hearing as to whether there was an employer/employee relationship and remanded the matter for a determination on that issue.
The trial commissioner then held a series of hearings and rendered a ruling April 9, 1990. Claimant appealed from that ruling and its holding that no contract of employment existed in Connecticut sufficient to confer jurisdiction to the Connecticut Workers' Compensation Commission. We reviewed that ruling and held that under Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181 (1991), the Connecticut Workers' Compensation Act should be applied when "Connecticut is the place of the injury, the place of the employment contract or the place of the employment relation." Id at 195. We therefore remanded the case again to determine whether there was an employer-employee relationship between the decedent and the respondent-employer.
The commissioner determined no employer/employee relationship existed in his September 24, 1991 Supplemental Ruling on Claimant's Motion to Preclude. Claimant appealed and sought correction of certain factual findings. Some of the corrections sought were granted. On appeal she contends, that the conclusion that the decedent was not an employee of the respondent-employer was legally inconsistent with the subordinate facts found.
She relies for this argument on the two corrected findings granted by the commissioner. They are as follows:
1. Respondent possessed the right to discharge decedent at any time if it were not satisfied with the quality of decedent's work.
2. The decedent had no control over the nature of design; but rather was given specific tasks to assess the feasibility of the design. For example, the tanker loading vessel project was one in which the decedent was directed to take dimensions of a vessel and perform trim and stability tests. If decedent's tests proved the vessel unstable, the vessel would then be redesigned and the decedent would then be directed to perform new tests.
The numbering of the paragraphs follows from the claimant's Motion to Correct dated September 30, 1991 and filed October 2, 1991, and the trial commissioner's October 7, 1991 ruling on claimant's Motion to Correct.
We disagree. Corrected findings do not necessarily mandate a different outcome. Claimant seems to be arguing that the right to discharge is the equivalent of the employer's right to control the employment and not just an important element to be considered in determining the right to control. See Bourgeois v. Cacciapuoti, 138 Conn. 317, 321 (1951) citing Bieluczyk v. Crown Petroleum, Corp., 134 Conn. 461, 467 (1948). See also, Aisenberg v. Adams Co., Inc., 95 Conn. 419, 423 (1920).
Many factors must be considered in the determination of whether an employer had the requisite control necessary to confer employee status on the decedent. Francis v. Franklin Cafeteria, Inc., 123 Conn. 320 (1937). See also, Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632 (1990) quoting Bourgeois v. Cacciapuoti, 138 Conn. 317, 321 (1951). Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624, 629 (1961) stated:
One is an employee of another when he renders a service for the other and when he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in which the service is to be done and in the means to he employed in its accomplishment as well as in the result to be attained. . . Bieluczyk v. Crowd Petroleum Corporation, 134 Conn. 461 (1948). Has the employer the general authority to direct what shall be done and when and how it shall be done — the right of general control of the work? Jack Jill, Inc. v. Tone, 126 Conn. 114, 119 (1939); Cumbo v. E.B. McGurk, Inc., 124 Conn. 433, 436 (1938).
Earlier Francis, supra 323-324, had this definition:
"An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work." 2 Cooley, Torts (3rd Ed.) 1098.
Claimant places special emphasis in her argument on the corrections granted in paragraph o. The task which paragraph assigns to the decedent is consistent with the work activities which may be performed by an independent contractor as it is a work assignment performed "according to [the decedent's] own methods and without being subject to the control of his employer, except as to the result of his work." Silverberg v. Great Southwest Fire Ins Co., 214 Conn. 632, 639 (1990) quoting Alexander v R.A Sherman's Sons Co., 86 Conn. 292, 297 (1912). See also, Francis v. Franklin Cafeteria Inc., supra at quoting Aisenberg v. Adams Co., Inc., 95 Conn. 419, 423 (1920).
Our review is limited to determining whether the trier's conclusions were without evidence contrary to law or based on unreasonable or impermissible factual inferences Fair v. People's Savings Bank, 207 Conn. 535 (1988); Castro v Viera, 207 Conn. 420 (1988). The commissioner's conclusions violated none of these tenets nor were the conclusions "so unreasonable as to justify judicial interference." Bailey v Mitchell, 113 Conn. 721, 725 (1931).
We therefore affirm the trial commissioner and dismiss claimant's appeal
Commissioners Frank Verrilli and Donald H. Doyle concur.