ldywrglr (Shelly)
> ...to get the ball rolling. A good legal assistant should easily be able to research several similar cases.
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> Merritt v. Nacom
> CASE NO. 4098 CRB-03-99-08
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> COMPENSATION REVIEW BOARD
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> WORKERS’ COMPENSATION COMMISSION
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> OCTOBER 16, 2000
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> HOWARD MERRITT
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> CLAIMANT-APPELLEE
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> v.
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> NACOM
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> EMPLOYER
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> and
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> ROYAL INSURANCE COMPANY
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> INSURER
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> RESPONDENTS-APPELLANTS
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> APPEARANCES:
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> The claimant was represented by Alan Tyma, Esq., Ryan & Tyma, P.O. Box 648, 231 Coram Avenue, Shelton, CT 06484-0648.
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> The respondents were represented by James D. Moran, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.
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> This Petition for Review from the July 27, 1999 Finding of Jurisdiction of the Commissioner acting for the Third District was heard April 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
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> OPINION
> JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have filed a petition for review from the July 27, 1999 Finding of Jurisdiction of the Commissioner acting for the Third District. In that decision the trial commissioner concluded that the claimant was an employee of the respondent Nacom at the time of his injury on September 25, 1996. In support of their appeal, the respondents contend that the trial commissioner’s conclusion was contrary to the evidence presented and was based upon unreasonable factual inferences.
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> The trial commissioner found that the claimant injured his right arm on September 25, 1996 while installing some television cable. Nacom had a contract with Comcast whereby Nacom would install cable television connections for Comcast customers. The claimant was trained by Nacom and began installing cable television for Nacom in 1995. The claimant’s work day was from 7:30 A.M. to 4:00 or 5:00 P.M. The claimant would report to Nacom’s office and would receive his daily job assignments from supervisors at Nacom. He was required to complete those job assignments on the day they were assigned. The claimant was required to wear a beeper and a two-way radio, which could be purchased or rented through Nacom, and he responded to Nacom dispatchers during the work day. Nacom maintained the right to discipline the claimant and to terminate the claimant. The claimant could not set his own price for the installations.
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> The trial commissioner further found that the claimant’s work was controlled by Nacom in that he was required to conform to the Installer Decorum Guide supplied by Nacom, which required the claimant to meet customer service requirements, identification requirements, appointments, quality and safety standards, and invoicing procedures. The claimant’s work could be inspected by Nacom or Comcast personnel. The claimant did not install cable for any other employer, or as an independent businessman, while working for Nacom. The trial commissioner found that Nacom had control over the means and methods of the claimant’s work, and thus concluded that the claimant was an employee of Nacom.
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> In support of their appeal, the respondents contend that the undisputed facts indicate that Nacom did not have control over the means and methods of the claimant’s work. The respondents point to the following findings of fact in support of their appeal: (1) the claimant was paid per cable installation rather than per hour; (2) the claimant used some of his own tools; (3) the claimant purchased liability and disability insurance; and (4) Nacom provided the claimant with a 1099 form and did not withhold taxes from his pay. We find no error.
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> We have repeatedly held that whether a claimant is an employee or an independent contractor is a factual issue for a trial commissioner to determine. Johnson v. Braun Moving, Inc., 3861 CRB-7-98-7 (Nov. 2, 1999). In Hanson v. Transportation General, Inc., 45 Conn. App. 441, 446, (1997), aff’d., 245 Conn. 613 (1998), the court explained:
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> Our courts have long recognized that independent contractors are not within the coverage of the Workers’ Compensation Act. . . . The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact. . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.
> Hanson, supra, 45 Conn. App. at 446, quoting Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16, 19-20, cert. denied, 227 Conn. 919 (1993).
> In the instant case, we agree with the respondents that a few of the findings, when viewed separately, tend to support an independent contractor relationship rather than an employee relationship. However, in the instant case the trial commissioner made numerous findings regarding the claimant’s employment relationship, and was entitled to give greater weight to those factors which indicated that the employer had control over the claimant’s work, including the fact that the claimant was required to work during a certain time period; was given daily assignments; was required to follow numerous guidelines in conducting his work; was trained by the employer; and did not perform this work for any other employer nor did he work on his own. We conclude that the findings of fact, which are supported by the record, amply support the conclusion that the employer had control over the means and methods of the claimant’s work.
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> In further support of their appeal, the respondents point to the trial commissioner’s finding that claimant signed a contract with Nacom which indicated that he was a subcontractor of Nacom. However, we have specifically held that “the key factor in establishing employee status is not the label applied by the parties in a memorialized agreement; it is the putative employer’s right to control the means and methods used by the person whose status is implicated.” Johnson, supra.
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> Finally, the respondents contend that the trial commissioner erred in denying their Motion to Correct. The respondents argue that their Motion to Correct included allegedly undisputed facts such as that the claimant was not paid when he did not work, and that it was Comcast rather than Nacom which required the use of the two-way radio and beeper. We find no error in the denial of the Motion to Correct, as a Motion to Correct may be denied where the legal conclusion of the commissioner would not be altered by the substituted findings. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).
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> The trial commissioner’s decision is affirmed.
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> Commissioners Robin L. Wilson and Leonard S. Paoletta concur.
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> State of Connecticut
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> Workers’ Compensation Commission
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> Page last revised: January 14, 2002
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> Page URL: http://wcc.state.ct.us/crb/2000/4098crb.htm >
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> > I'm need some info about how small cable instillation company's with 10 or fewer employees are ran. My ex-husband was employeed with a small company in 2000 when he was killed in a auto accident in March of 2000. Our daughter at the time was three. He was working as a installer but also handled the routing, disbursment of routes, picking up of cable and other related materials from Cox. He was in route to Ok City to pick-up ladder racks from Jack's Rack's there in Ok City. The company he was employeed by was withholding work comp and liability insurance from his check, but when we filed a death loss claim they stated he was an independant contractor without any benefits and they refused to pay anything through their work comp insurance. This company has not even sent me his final check, appariently he never got a chance to cash it. Please help us to find out any information that would help our case, as you can see we have been fighting for her benefits for three years now. Thank you for taking the time to read this and for any help you may give us.
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