F-17165. Dorris v. Eustis.

Case DateNovember 03, 1995
CourtVermont
Vermont Workers Compensation 1995. F-17165. Dorris v. Eustis November 3, 1995State File No. F-17165 By: Sheldon A. Keitel Hearing Officer For: Mary S. Hooper Commissioner Opinion # 70-95WC WILLIAM DORRIS v. WILLIAM EUSTIS dba EUSTIS CABLEAPPEARANCES George E. Rice, Esq. for the claimant Christopher J. McVeigh, Esq. for the defendant ISSUES 1. Was claimant an employee or an independent contractor on the date of injury? 2. If an employee, did the injury arise out of and in the course of employment? THE CLAIM 1. Temporary total disability compensation under 21 V.S.A. §642. 2. Medical and hospital benefits under 21 V.S.A. §640. 3. Attorney's fees. FINDINGS OF FACT 1. The following documents were admitted into evidence at the formal hearing:
Claimant's Exhibit 1 Affidavit of Mary Jo Dorris dated February 3, 1994
Claimant's Exhibit 2 Handwritten statement of Fred Zullo dated August 3, 1993
Defendant's Exhibit A Joint income tax returns 1989-1993 (Mary Jo and William Dorris)
Defendant's Exhibit B Medical records of claimant 9-17-83 thru 9-19-83 (Ogallala Community Hospital, Ogallala, Nebraska) (9 pages)
Defendant's Exhibit C Deposition transcript dated 7/29/94 (Scott Witherell)
Defendant's Exhibit D IRS Forms 1099-MISC issued to various individuals by Eustis Cable for 1992
Defendant's Exhibit E Diagram hand-drawn by claimant
Defendant's Exhibits FandG (LEFT BLANK INTENTIONALLY)
Defendant's Exhibit H Vermont State Police Live Database dated 8/18/94 (3 pages)
2. Judicial notice was taken of the following documents in the Department's claim file relating to this matter: Form 5 Notice of Injury and Claim for Compensation Form 6 Notice and Application for Hearing Letter B. Pearson (DET) to Mr. Rice dtd 7/12/94 Medical records 3. By stipulation of the parties, the only issues for decision are as stated above (i.e., basic compensability, without presentation or consideration of evidence regarding possible actual monetary awards). Although the record was to be officially closed in March of 1995, "supplemental" filings, "follow-up," rejoinders and rebuttal from the parties' counsel continued through the end of August 1995. 4. The formal hearing took three full days to hear live testimony from eleven witnesses, during which the credibility of both parties was thoroughly undermined on matters both central and collateral to the present claim. The parties' conduct, demeanor, self-contradictions and inconsistencies, combined with credible evidence developed through third-party testimony which contradicts both parties' versions of events turned the proceedings into a veritable 'liar's contest.' The objectivity of several non-party witnesses was likewise called into question by reason of clear potential for bias arising out of their respective internecine self-interests and relationships with the parties (longstanding friendships, marriage, or possible financial benefit from future business dealings and employment). 5. The following findings of fact (to the extent ascertainable from a record based on something clearly other than the 'whole truth') are based on facts not in dispute; common ground of apparent agreement between the parties; and independent evidence deemed to be sufficiently credible and material to the issues in dispute to support legal conclusions. The testimony of witnesses Hannan, Barney, Fink and Foster, although credible, was cumulative, marginally relevant, and played no part in this decision. (a) Defendant William Eustis started working in the cable TV business at age 19. He developed his own business which involves all aspects of installing, upgrading, and maintaining cables for the delivery of television signals from signal providers (cable TV companies) to consumers. Mr. Eustis sometimes serves as the general contractor for relatively small projects but, because his company is itself relatively small, more often as a sub-contractor to larger companies on more extensive projects. (b) The installation of TV cable involves primarily the physical labor of attaching cables to existing telephone poles with appropriate hardware. Mr. Eustis owns his own "bucket trucks" (cherry pickers) and other simple tools necessary for the task such as a hand-operated mechanical winch (a come-along) to pull the cable from pole to pole, although others who provide the same service as Mr. Eustis' company do so with a pick-up truck and by climbing each individual telephone pole. (c) A "crew" typically consists of two persons: the lineman who actually attaches cable to poles and a ground man (or "grunt") who drives the vehicle, performs clean-up functions, and otherwise supports the operations at street level. A lineman is typically more experienced than a "grunt" and serves as foreman of the crew; some linemen develop superior speed and proficiency (as did claimant), but no specialized training other than what they pick up on the job from other linemen is required to become one. (d) Cable contractors and sub-contractors such as Eustis Cable Enterprises are paid a flat sum (usually the bid price) for completion of their respective portion or portions of an overall project. It was Mr. Eustis' practice (allegedly a common practice within the industry) to regard all subordinates within a contracted project who performed any part of Eustis Cable's overall responsibilities (including "crews") as further sub-contractors. (e) Mr. Eustis testified that he typically kept a percentage of the payment to Eustis Cable and passed on the remainder for further distribution by his "sub-contractors," although he simultaneously (and inconsistently) maintained that the amount he paid subordinates was determined by each crew's per unit rate of production (e.g., $0.15 per foot of cable). Mr. Eustis in any event paid subordinates without withholding for income tax or other governmental contributions, although he did withhold from payments to them amounts which he determined and apportioned as their contributions for lodging (arranged by Eustis), equipment maintenance (of Eustis' own vehicles), and other "shared" operating expenses on any given job. He also frequently made payments directly to individual subordinates, sometimes in cash, rather than to or through a designated "sub-contractor" (who was also typically the "foreman" of a "crew"). (Testimony of Halford, Curtis and Zullo.) (f) The claimant, William Dorris, 33 years of age on the date of the alleged injury, first entered into a working relationship with defendant Eustis (a year or two younger than claimant but roughly the same age) in 1989 or 1990. Claimant at that time had had prior experience working with two other cable installation companies. Claimant and Eustis became friends; their overall relationship was as much social as business-related. Mr. Eustis was pleased with claimant's work and valued his abilities. In the course of their relationship, claimant performed tasks other than stringing cable as directed by Mr. Eustis, including vehicle maintenance on Eustis' vehicles and putting in a water line at Mr. Eustis' residence. (g) The claimant did not report any income on income tax returns in any year during which he worked for Eustis Cable. Claimant reported himself as "unemployed" or "disabled" on income tax returns for each of the years 1989 through 1993. (Testimony of William Dorris and his estranged wife, Mary Jo Dorris; Defendant's Exhibit A.) (h) Claimant William Dorris had back problems which pre-existed the present claim. Claimant suffered a fracture of the transverse process of L-2 or L-3 (or possibly both) in 1983 (the medical records are not clear). (Defendant's Exhibit B.) Claimant and Mary Jo Dorris were married in 1986; claimant complained of back problems from the time she met him through the date of the injury giving rise to the present claim. (i) Eustis Cable Enterprises secured a sub-contract on a large project in Brooklyn, New York in the Spring of 1992. One of Eustis' "sub-contractors" on that project was the "crew" made up of the claimant William Dorris and Keith Curtis. In mid-April of that year, the claimant drove one of Eustis' bucket trucks to the general contractor's warehouse in...

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