Opinion
CASE NO. 1205 CRD-5-91-3
JUNE 30, 1992
The claimant was represented by Lawrence J. Cicchiello, Esq., of the Law Offices of Angelo Cicchiello.
The respondent was represented by Bernard Poliner, Esq.
The Second Injury Fund did not appear.
This Petition for Review from the March 20, 1991 Supplemental Finding and Award of the Commissioner for the Fifth District was heard February 21, 1992 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Jesse M. Frankl and George Waldron.
OPINION
This matter seeks a second review. In our first consideration, January 17, 1991, we ruled that the commissioner's conclusion that claimant was an employee of the respondent rather than an independent contractor was not sufficiently supported by factual findings. The claimant had suffered injuries when he fell from a ladder while working on respondent's job. When we remanded the matter, the trial commissioner reviewed the evidence and made additional findings; except' insofar as the Supplemental Finding and Award was inconsistent, the original July 24, 1989 Finding and Award was confirmed and ratified.
Originally this matter was heard before the instant trial commissioner in his capacity as a Commissioner At Large acting for the First District. Since the January 17, 1991 Compensation Review Division's opinion remanding the instant matter to the trial commissioner for additional factual findings the trial commissioner was appointed Commissioner of the Fifth District.
In this second appeal, the respondent again disputes the conclusion that claimant was an employee of the respondent at the time of injury. As noted in Reale v. Carducci Builders, 9 Conn. Workers' Comp. Rev. Op. 31, 901 CRD-1-89-8 (1991) [hereafter Reale I] whether there is an employer/employee relationship is a factual determination turning on the right of general control over the work. See Reale I id, citing Kaliszewski v. Weathermaster Alsco Corp. 148 Conn. 624, 629 (1961). On review we may only determine whether the trier's conclusion was sufficiently supported by the factual findings, McQuade v. Ashford, 130 Conn. 478 (1944), and whether it was contrary to law, evidence or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988).
In his new ruling the commissioner found that claimant was a painter and the respondent was in the construction business. He also found that respondent contracted with another painter who quit the job after completing the exterior portion of the house. Then respondent and claimant agreed that the claimant would paint the interior. Respondent supplied the paint and equipment and paid claimant by the week for his services.
Respondent attacked and sought to correct many of the commissioner's factual findings. Corrections thus sought will not be granted unless they are admitted or undisputed. Grady v. St. Mary's Hospital, 179 Conn. 662, 669 (1980). Here there was testimony which supported the facts as found by the trial commissioner. See e.g., March 17, 1989 TR, 7-8, 11-28. As there was an evidentiary basis for the findings, it was not error for the trial commissioner to deny the respondent's Motion to Correct. We will not disturb those conclusions as they were dependent upon the weight and credibility accorded the evidence. Rivera v. Guida's Dairy, 167 Conn. 524 (1975).
We therefore affirm the Supplemental Finding and Award and deny the appeal. We grant interest pursuant to Sec. 31-301c(b) at the rate permitted by statute on any amount remaining unpaid during the pendency of this appeal.
Commissioners Jesse M. Frankl and George Waldron concur.