Yurevich v. Dimitri Logvinski

The claimant was represented by Brendan T. Canty, Esq., Kerin & Canty, 193 East Avenue, Norwalk, CT 06855.

The respondent-employer was represented by James L. Sullivan, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.

The respondent, Second Injury Fund was represented at the trial level by Kenneth Kennedy, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120. However, they did not participate in the proceedings before the Compensation Review Board.

This Petition for Review from the October 18, 2005 Finding & Dismissal of the Commissioner acting for the Seventh District was heard April 28, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal challenges the finding that the Commission lacks jurisdiction over a workplace injury because the claimant was an independent contractor. Such a determination is inherently fact driven. Upon review, we find the dispute is based on the trial commissioner’s interpretation of the facts, not the law. Consequently, we are compelled to dismiss the appeal.

Following a formal hearing which commenced November 23, 2004 and concluded June 20, 2005, the trial commissioner found the following facts. The claimant is an immigrant from Russia who worked in his native land as a mechanical engineer. Findings, ¶ 1. The respondent is also a native of Russia and knew the claimant prior to emigrating. Findings, ¶ 17. On November 1, 2003, the respondent, Dimitri Logvinski was engaged in a carpentry project on a private home in North Stamford. Findings, ¶¶ 2-3. On that date, the claimant suffered a thumb injury while working at the site. Findings, ¶ B. The respondent provided the lumber and material and a table saw; while the claimant brought his own carpentry belt and tools. Findings, ¶¶ 4-5. The claimant had worked for the respondent on previous jobs in 1996 and 1997. While the parties differed on the nature of that prior work, the trial commissioner found it had been performed by the claimant as an independent contractor. Findings, ¶¶ 6-8. The trial commissioner found that in 2003 the claimant was offered work as an employee, but asked to be considered an independent contractor so as not to have taxes and other deductions withheld from his pay. Findings, ¶¶ 9-10. The parties dispute the level of control the respondent had over the claimant’s work on the job site. The trial commissioner did not agree with the claimant’s assertion the respondent was in control of the claimant’s work. Findings, ¶ 11. Two other witnesses testified that the claimant acted as a subcontractor to the Respondent. Findings, ¶¶ 12-16. The respondent said the claimant did not work set hours. Findings, ¶ 18. The invoices submitted as evidence demonstrate the claimant was compensated by the hour with no deductions. Findings, ¶¶ 19-20. The claimant’s tax filings were that of a self-employed individual. Findings, ¶¶ 21-26.

The trial commissioner concluded in his Finding and Dismissal of October 18, 2005 that the subordinate facts demonstrated that the respondent did not exercise sufficient control to meet the legal standard of an employer and as an independent contractor the claimant was not entitled to receive workers’ compensation benefits for his injury. Findings, ¶¶ A-C. Following a Motion to Correct, which was denied by the trial commissioner, this appeal ensued.

The claimant’s argument on appeal is while the claimant may have been an independent contractor in the past, and may have had the tax status of an independent contractor, that on “the day of the accident” the respondent exercised a sufficient indicia of control over the worksite to create an employer-employee relationship. He cites the holding of Hanson v. Transportation General, Inc. d/b/a Metro Taxi, 16 Conn. Workers’ Comp. Rev. Op. 57, 3001 CRB-3-95-2 (October 18, 1996), aff’d, 45 Conn. App. 441 (1997), aff’d, 245 Conn. 613 (1998) as legal authority for reversal. A review of our decision in Hanson does not compel such a conclusion, however.

While Hanson stands for the legal standard to determine whether an employer-employee relationship exists, “The ultimate test ‘is the right of general control of the means and methods used by the person whose status is involved.’” Id. Hanson is also a case where the trial commissioner specifically found based on the facts presented such a relationship did not exist. We went on to hold in Hanson, “[e]mployment status is patently a factual issue, and is subject to a significant level of deference on review.” (Internal citations omitted) Id.

While we understand the claimant’s argument to be that the nature of the relationship between the claimant and respondent changed on the day of the accident, we are obligated to provide substantial deference to the trial commissioner’s finding that the relationship remained that of an independent contractor. Essentially the claimant argues that since he did not measure the windows on the day of the accident, this substantially changed the nature of the relationship. We defer to the findings of the trial commissioner (Findings, ¶ 11 and Findings, ¶ A) that this did not occur. We have distinguished in recent cases between employees who are retained and directly supervised and other cases where one was hired to work in an autonomous manner and paid consistent with independent contractor status i.e., Altieri v. R & M Builders, 3647 CRB-5-97-7 (December 18, 1998); Spiwak v. Daniel Gassner d/b/a DGC, 3760 CRB-4-98-1 (April 5, 1999). See Mangual v. Andrew LeBlanc d/b/a Express Tiles, 4957 CRB-1-05-6 (April 26, 2006). A review of the underlying facts and legal arguments presented herein indicate this case is virtually identical to Altieri, supra; thus, the principle of stare decisis compels us to reach the same conclusion and dismiss the instant appeal. The burden of proof is on the claimant to prove he was an employee, Bonner v. Liberty Home Care Agency, 4945 CRB-6-05-5 (May 12, 2006) and we will not disturb the trial commissioner’s factual finding such proof was lacking.1

The appeal is dismissed and the October 18, 2005 Finding and Dismissal is affirmed.

Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this opinion.

1 Accordingly, there was no error in the trial commissioner’s denial of the claimant’s motion to correct. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT