Opinion
CASE NO. 857-CRD-2-89-4CASE NO. 858-CRD-2-89-4
JANUARY 9, 1991
The claimant-Robert Clark was represented by Arnold Beizer, Esq. The claimant-Brian Milliron was represented by Harry Arters, Esq. Although claimants were represented at the appellate proceeding no briefs were filed on their behalf as the issue on appeal only affected matters among the respondents.
The respondents employer Armando Masini [Massini] and insurer Utica Mutual Insurance Co., were represented by William Brown, Esq., McGann, Bartlett Brown.
The respondent Armando Massini (individually) was represented by James Berryman, who appeared at the appellate hearings but did not file a brief.
The respondents employer Coastal Management Company and insurer American Universal Insurance Company were represented by Dennis Ferdon, Esq., and Michael P. Carey, Esq., of Brown, Jacobson, Tillinghast, Lahan, King, P.C.
The Second Injury Fund was represented at the trial level by Brewster Blackall, Esq., Assistant Attorney General. The Second Injury Fund did not participate in the appellate proceedings.
This Petition for Review from the April 12, 1989 Finding and Award of the Commissioner for the Second District was heard April 27, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Thomas White Jr., and James Metro.
OPINION
Robert Clark and Brian Milliron, the two claimants, were injured August 7, 1985 while furnishing carpentry services at a New London site known as the Whaler Complex. The general contractor for the Whaler Complex was Coastal Management Company of Mystic. Coastal Management engaged Armando Massini as the carpentry sub-contractor. Massini as an individual proprietor was insured for worker compensation liability by Utica Mutual Insurance Company. Massini was also the president and sole stockholder of TRA Contractors, Inc., a Delaware corporation. TRA had no workers' compensation insurance.
Massini engaged the services of Clark and Milliron to perform carpentry work on the Whaler Complex project. Clark was hired at a $10.00 hourly rate and Milliron, a $6.00 hourly rate. Each of them was paid by checks drawn on a TRA Contractors, Inc.[,] account. No deductions were made from those checks for income tax withholdings or social security contributions.
Respondent Utica Mutual argues that claimants were employees of TRA Contractors, Inc. and the trial commissioner could not pierce the corporate veil and find they were employees of Massini. But to pose the question in those terms is to avoid the real issue that the commissioner needed to decide. The trier had to determine who the employer was not who paid the check.
Certainly the identity of the check payer may be an important factor in making the determination but it is not a conclusive one. Rather the commissioner had to consider all the facts in evidence. Among these was the rather obvious attempt to have these claimants considered independent contractors and Massini's probable violation of federal law by failing to have tax and FICA sums withheld from the remuneration paid. The direction and control of the work, the identity of the person who engaged claimant's services and the manner in which that was accomplished were all further relevant facts to be considered in reaching a determination.
As is obvious from his findings only after considering all these facts did the commissioner reach the conclusion that in reality Massini and not TRA was the employer. He reaches that conclusion in Paragraph 31 of his findings. The last sentence of Paragraph 31 "that TRA was a corporate shell used by Massini and as such was not claimant's employer" is really superfluous comment. The basic finding is in the first sentence of that paragraph.
As our law holds that the determination of employment status in one of fact, Francis v. Franklin Cafeteria, Inc. 123 Conn. 320 (1937); Ukers v. Brook, 5 Conn. Workers Comp. Rev. Op. 51, 372 CRD-7-85 (1988). Gadacy v. Busk, 4 Conn. Workers' Comp. Rev. Op. 1, 431 CRD-4-85 (1987); we will not disturb the trier's finding here. Fair v. People's Savings Bank, 207 Conn. 535 (1988).
We therefore dismiss the instant appeal.
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.
Commissioners A. Thomas White, Jr., and James Metro Concur.