5316 CRB-7-08-1 (2009). Rodriguez v. Ed Construction a/k/a E.D. Construction, Inc.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5316 CRB-7-08-1 (2009). Rodriguez v. Ed Construction a/k/a E.D. Construction, Inc CASE NO. 5316 CRB-7-08-1COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSION MAY 11, 2009RAMIRO RODRIGUEZ CLAIMANT-APPELLANT v. ED CONSTRUCTION a/k/a E.D. CONSTRUCTION, INC. EMPLOYER and TRAVELERS PROPERTY & CASUALTY INSURER RESPONDENTS-APPELLEES and CNA CLAIM PLUS INSURER RESPONDENTS-APPELLEES and SECOND INJURY FUND RESPONDENT-APPELLEE APPEARANCES: RAMIRO RODRIGUEZ CLAIMANT-APPELLANT v. ED CONSTRUCTION a/k/a E.D. CONSTRUCTION, INC. EMPLOYER and TRAVELERS PROPERTY & CASUALTY INSURER RESPONDENTS-APPELLEES and CNA CLAIM PLUS INSURER RESPONDENTS-APPELLEES and SECOND INJURY FUND RESPONDENT-APPELLEE APPEARANCES: The claimant was represented by James T. Baldwin, Esq., Coles, Baldwin & Kaiser, Attorneys and Counselors at Law, 1261 Post Road, P.O. Box 577, Fairfield, CT 06824. The respondent Ed Construction a/k/a E.D. Construction, Inc., was represented by Robert J. Sciglimpaglia, Esq., The Law Offices of BT Canty, 193 East Avenue, Norwalk, CT 06855. The respondent Travelers Property & Casualty was represented by Tracy Green Cleary, Esq., Law Offices of Cynthia M. Garraty, Crossroads Corporate Park, 6 Devine Street, 1st Floor, North Haven, CT 06473. The respondent CNA ClaimsPlus was represented by Sean Nourie, Esq., Conway & Stoughton, LLP, 818 Farmington Avenue, West Hartford, CT 06119. The respondent Second Injury fund was represented by Lisa Weiss, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120. This Petition for Review(fn1) from the January 10, 2008 Finding & Dismissal of the Commissioner acting for the Seventh District was heard January 23, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Stephen B. Delaney. OPINIONJOHN A. MASTROPIETRO, CHAIRMAN. The present appeal involves the question as to whether the claimant was an employee or an independent contractor at the time of his injury. Two central questions need to be resolved in the claimant's favor in order to award benefits under Chapter 568. The claimant must demonstrate he or she is credible and the claimant has the burden of proving the presence of an employer-employee relationship. The claimant herein is appealing the denial of benefits under this act. Upon reviewing the record before the trial commissioner we conclude he resolved those two central issues in a manner adverse to the claimant. Since these pose questions of fact, we are unable to reach a contrary result. We affirm the Finding and Dismissal and dismiss this appeal. A workplace accident on June 14, 2003, which in the words of the trial commissioner resulted in "horrific and catastrophic injuries" to the claimant prompted this claim. On that date the claimant was working on a roof and was in the process of drying moist plywood with a torch when an explosion and fire occurred. Therefore, there is no dispute that the claimant's injuries are the result of injuries incurred while he was employed. The sole issue for our consideration is whether the claimant was an employee of the respondent ED Construction at the time of this accident, or as the respondent maintains, was an independent contractor who was responsible for his own insurance against workplace injuries. The trial commissioner found the following facts which are relevant to our appellate review. The claimant, a native of Mexico, was not proficient in roofing work when he commenced working for ED Construction. He testified that he learned how to do roofing from ED's principal, Ed Devingo, and after about two years was proficient at the trade. He was originally paid $100 per day but then was paid by the hour. At the time of the claimant's accident he was being paid at the rate of $20 per hour, and depending on the weather, was working 30 to 42 hours per week. The claimant produced evidence that he cashed over $65,000 of checks from ED Construction during the three years prior to the accident. The claimant's evidence also included 1099 Federal Income Tax forms from E.D. Construction, Inc. to Ramiro Rodriguez for miscellaneous income for the years 1998, 2000, 2001, 2002 and 2003. He also executed various forms acknowledging that he was a subcontractor for ED Construction and was excluded from coverage under the Connecticut Workers' Compensation Act. The claimant testified that he did not understand English and did not understand the consequences of executing the forms excluding himself from workers' compensation coverage. The trial commissioner specifically did not find these facts after considering the claimant's testimony. The claimant also executed a form representing that he would carry general liability insurance as a condition of working for ED Construction; and executed a general liability insurance policy, which named ED Construction as the certificate...