Rodriguez v. E.D. Constr. Inc.

• Decision Date: 22 February 2011
• Docket Number: No. 31115.,31115.
• Citation: 126 Conn.App. 717,12 A.3d 603
• Court: Connecticut Court of Appeals
• Parties: Ramiro RODRIGUEZv.E.D. CONSTRUCTION, INC., et al.

126 Conn.App. 717

12 A.3d 603

Ramiro RODRIGUEZ

v.E.D. CONSTRUCTION, INC., et al.

No. 31115.

Appellate Court of Connecticut.

Argued Oct. 26, 2010.Decided Feb. 22, 2011.

James T. Baldwin, with whom, on the brief, was Marisa F. Schafer, Fairfield, for the appellant (plaintiff).Robert Sciglimpaglia, Jr., for the appellee (named defendant).Lisa Guttenberg Weiss, assistant attorney general, for the appellee (defendant second injury fund).BISHOP, LAVINE and FOTI, Js.FOTI, J.

The plaintiff, Ramiro Rodriguez, appeals from the decision of the workers' compensation review board (board) affirming the decision of the workers' compensation commissioner (commissioner) to dismiss his claim for benefits for injuries he suffered in an accident while installing a roof for the defendant E.D. Construction, Inc.¹ On appeal, the plaintiff claims that the board improperly affirmed the commissioner's finding that he was not an employee of the defendant at the time of the accident. ² We affirm the decision of the board.

The following facts and procedural history are relevant to this appeal. On June 14, 2003, the plaintiff was in the process of installing a rubber roof in Norwalk. During that installation, he attempted to dry with a torch the moist plywood foundation on which the rubber roof was to be adhered. Unbeknownst to the plaintiff, the plywood had been previously treated with a highly flammable adhesive, and his use of the torch produced an explosion and a fire. As a result, the plaintiff was engulfed in flames and fell from the two-story roof. Tragically, the plaintiff suffered life threatening burns to over 90 percent of his body, resulting in the amputation of his right arm and limiting the use of his left arm. Thereafter, the plaintiff filed a claim for workers' compensation benefits with the commissioner for the seventh district. The plaintiff claimed that at the time of the accident, he was an employee of the defendant, the roofing company that contracted to install the roof. The defendant denied compensability. Specifically, the owner of the defendant, Edward Devingo, asserted that he hired the plaintiff as a subcontractor to install the roof.³

Over the course of two years, the commissioner held nine formal hearings during which extensive evidence was introduced by both parties. In support of his claim that he was an employee of the defendant, the plaintiff testified that on the date of the accident, he was being paid $20 per hour by the defendant, that he was trained in the roofing trade by the defendant, that the defendant provided tools on his roofing jobs and provided transportation to and from work sites and that Devingo governed the manner of work at each of the various job sites. He also testified that although he was able to speak and to understand English “[a] little bit,” his primary language was Spanish, and under no circumstances was he able to read or to write English. As a result, the plaintiff testified, he was unaware of, and did not understand, the consequences of executing certain documents in which he acknowledged that he was excluded from coverage under the Workers' Compensation Act (act), General Statutes § 31–275 et seq. He also testified that he executed a general liability insurance policy that named him as the insured policyholder and that Devingo originally advanced the premium on that general liability policy.

Devingo, on the other hand, testified that the plaintiff was able to speak, to understand and to read English capably and that (1) he did not train the plaintiff in the roofing trade, (2) the plaintiff provided his own tools and transportation to job sites, (3) he did not withhold taxes from the plaintiff's compensation, (4) he provided Internal Revenue Service form 1099 to the plaintiff in 1998 and 2000–2003, and (5) he paid the plaintiff according to each particular job rather than hourly. Devingo also testified that he did not control the plaintiff's work schedule, nor did he direct the manner of the plaintiff's work and was not on the work site on the day of the accident. ⁴ Additionally, Devingo testified that the plaintiff had his own roofing business and that he would perform jobs for third parties, independent of the defendant. Moreover, Devingo testified that he informed the plaintiff that to continue installing roofs for the defendant, the plaintiff would need to become an independent contractor and to carry his own liability insurance.⁵ During this conversation, Devingo testified, he explained to the plaintiff that he was not covered under workers' compensation insurance. Devingo further testified that, although he recommended the John M. Glover Agency (Glover) to the plaintiff, he did not make any payments on behalf of the plaintiff regarding that policy. Devingo also testified that he informed the plaintiff that to maintain his working relationship with the defendant, he would need to execute waiver forms declaring himself to be exempt from coverage under the act because he was an independent contractor. The plaintiff complied with these directives from Devingo.

The commissioner also heard testimony from former workers of the defendant and two employees from Glover. Both Glover employees testified that the plaintiff had obtained liability insurance policies through their agency prior to the accident. The commissioner also heard testimony from three homeowners with whom the plaintiff had contracted to perform roofing projects, independent of the defendant.⁶ In addition to the oral testimony, both parties introduced numerous exhibits, including (1) the plaintiff's business card, which stated, “Ramiro Roofing, Ramiro Rodriguez, owner. All types of roofs, wood shingles, copper work, etc. Free estimates”; (2) 1099 federal income tax forms for 1998 and 2000–2003 that were provided to the plaintiff by the defendant; (3) forms, signed by the plaintiff, stating that he acknowledged that he was not covered under the act; (4) a certified certificate of liability insurance naming the plaintiff as the insured policyholder providing coverage from March 29, 2003, to March 29, 2004; and (5) an estimate for roofing services from “Romero Rodriguez Roofing” dated October 31, 2002.⁷ At the close of the hearings, both parties submitted proposed findings and memoranda of law in support of their respective positions.⁸

On January 10, 2008, the commissioner issued an eight page finding and dismissal of the plaintiff's claim. In that decision, the commissioner determined that the sole issue presented was whether the plaintiff “was an employee of [the defendant] on June 14, 2003, when he suffered horrific and catastrophic injuries....” Under the heading “the following facts are found,” the commissioner summarized the evidence introduced at trial into fifty numbered paragraphs, which were also interspersed with specific findings of fact.⁹ Two explicit findings of fact found by the commissioner were that “on the date of the accident ... the [plaintiff] was using his own tools and was in the process of drying moist plywood with a torch when the explosion and fire occurred” and that the plaintiff was being paid at an hourly rate at the time of the accident. In addition to these explicit findings of fact, the commissioner's decision also contained several implicit findings in which he discounted the plaintiff's testimony as not being credible. For example, the commissioner stated that “[t]he [plaintiff] testified that the alleged [e]mployer would drive [him] to the job site in various vehicles owed by [the defendant] and would set the hours and the places to be worked. The [plaintiff] testified that during the period of time that he was working with or for [the defendant], he did not do any outside jobs other than possibly one or two in his own name. That is not so found by the undersigned commissioner.” (Emphasis added.) With the exception of accepting the plaintiff's testimony in which he stated that he was paid hourly, the remainder of the commissioner's conclusions relating to the plaintiff's credibility were stated in similar fashion. Seven paragraphs contained in the finding and dismissal discredited the plaintiff's testimony with similar language indicating that the purported fact was not so found by the commissioner. For example, the commissioner did not find credible the plaintiff's testimony that (1) Devingo had paid for the plaintiff's liability insurance policy with Glover and then subtracted portions of the amount of the premium from the plaintiff's weekly checks, (2) the plaintiff did not understand the consequences of obtaining his own liability insurance or signing exclusionary documents regarding his status as an independent contractor and (3) the plaintiff did not understand English.

At the conclusion of the finding of facts section, the commissioner set forth four definitive findings and conclusions in four separately lettered paragraphs that incorporated by reference the fifty paragraphs of evidence and facts cited previously. In that summation, the commissioner found: “Based on all of the evidence before me, I determine, conclude and find: (A) That prior to the date of the [plaintiff's] injuries he was able to speak and understand English and read English to some extent. (B) That notwithstanding the contradictory testimony regarding the method of payment [and] the control exercised by [the defendant] over the [plaintiff], the [plaintiff] of his own volition agreed to change his status from that of an employee with which had begun his relationship with [the defendant] to that of an independent contractor. (C) That the [plaintiff] understood and reluctantly agreed to continue the relationship with [the defendant] after he was informed that he would become an independent contractor. (D) That the [plaintiff] knowingly signed the exclusionary forms for the workers' compensation commission and the agreements stating that he was an independent contractor and,...