Summary
holding part C satisfied with respect to licensed nurses who received assignments from referral service, and relying on their performance of assignments for other medical facilities while working for plaintiff, to reject argument that nurses needed "a saleable business before they could be considered customarily engaged in an independently established profession"
Summary of this case from Sw. Appraisal Grp., LLC v. Adm'r, Unemployment Comp. Act.Opinion
Nos. CV-88-029573 CV-88-02957
Unemployment compensation; whether defendant improperly determined that nurses were employees of plaintiff professional nurse's agency and that assessment of unemployment taxes by defendant against plaintiff was valid; whether defendant improperly determined that nurses were not independent contractors for purposes of unemployment compensation act; whether assessments against plaintiff were due retroactively.
Memorandum filed April 29, 1992
Memorandum of decision on appeals by the plaintiff from assessments of unemployment compensation taxes by the defendant. Appeals sustained.
Garrison Arterton, for the plaintiff.
Richard T. Sponzo, assistant attorney general, with whom was Richard Blumenthal, attorney general, for the defendant.
These two cases are appeals from assessments by the defendant administrator of the Connecticut Unemployment Compensation Act (administrator) pursuant to General Statutes 31-270 for unemployment taxes based on the administrator's determination that nurses furnished by the plaintiff, Daw's Critical Care Registry, Inc. (Daws), to medical facilities are employees of Daws under the Connecticut Unemployment Compensation Act (act) and not independent contractors as Daws contends.
These two appeals were referred to the author as a state trial referee.
These two appeals are identical and raise the same issues except that Docket No. CV-88-029573 concerns the unemployment compensation tax assessment for 1986 and 1987 while Docket No. CV-88-02957 concerns the unemployment compensation tax assessment for 1985.
General Statutes § 31-270 provides: "FAILURE OF EMPLOYER TO FILE REPORT OF CONTRIBUTIONS DUE. APPEAL FROM ACTION OF ADMINISTRATOR. If an employer fails to file a report for the purpose of determining the amount of contributions due under this chapter, or if such report when filed is incorrect or insufficient and the employer fails to file a corrected or sufficient report within twenty days after the administrator has required the same by written notice, the administrator shall determine the amount of contribution due, with interest thereon pursuant to section 31-265, from such employer on the basis of such information as he may be able to obtain and he shall give written notice of such determination to the employer. Such determination shall be made not later than three years subsequent to the date such contributions became payable and shall finally fix the amount of contribution unless the employer, within thirty days after the giving of such notice, appeals to the superior court for the judicial district of Hartford New Britain or for the judicial district in which the employer's principal place of business is located. Said court shall give notice of a time and place of hearing thereon to the administrator. At such hearing the court may confirm or correct the action of the administrator. If the action of the administrator is confirmed or the amount of the contribution determined by the administrator is increased, the cost of such proceedings, as in civil actions, shall be assessed against the employer. No costs shall be assessed against the state on such appeal. The amount of any judgment rendered in such proceedings, with costs, shall be collected either on execution, as provided in civil actions, or as provided in section 31-266."
Daws was established in 1982 and was solely owned and operated by Karen Whyko until its incorporation in 1985 as Daw's Critical Care Registry, Inc.
The parties have stipulated that the business of Daws from 1985 through 1987 was to provide registered nurses and licensed practical nurses to medical facilities including hospitals, nursing homes, visiting nursing services and physicians' offices. The term "nurses" in this opinion will be used to refer to both registered nurses and licensed practical nurses unless otherwise noted, and the term "medical facilities" will be used to refer to those facilities set out in the stipulated facts.
Daws took appeals to the Superior Court maintaining that Daws' nurses, whom Daws treated as independent contractors, were not, as the administrator determined, employees under the act. Daws alleges that this determination of the administrator is incorrect as a matter of both fact and law because the status of the nurses in dispute is that of independent contractors. Daws also alleges that the administrator's assessments under the act are illegal and improper. In the event, however, that the assessments by the administrator are legal and found to be owing by Daws under the act, Daws asserts that they should be due only prospectively and not retroactively.
In its appeals, Daws seeks a hearing and review of the determinations and assessments made by the administrator, and an order correcting and vacating the assessments and determinations, or for such other proper order as the court deems just. The administrator admits that he made the determination that these nurses are employees of Daws under the act and that assessments of amounts due under the act have been forwarded to Daws. He, however, denies that this determination is incorrect, either factually or legally, as well as denying that the assessments may not be made due retroactively.
The procedural history of these cases deserves some comment. In that regard, the record of the proceedings prior to the actual appeals is illuminating. Pursuant to the request of G. Joseph George (George), a field auditor of the employment security division of the defendant administrator, Daws made available its books and records in response to George's letter asking for an examination of them as they related to the provisions of the act. Daws cooperated and George conducted his audit. A postaudit "discussion" was held on March 16, 1988, at which George, David Delaney (Waterbury area field service representative), Joseph-Whyko (president of Daws) and his attorney, Joseph Garrison, were present. Thereafter, in April, 1988, George issued his written report in which he concluded that all the Daws nurses involved were, under the ABC test, employees and not independent contractors and that remunerations paid to such nurses were to be treated "as liable wages subject to the U.C. [unemployment compensation] law. . . ." According to the record, upon the presentation of the original assessment, George's written report was discussed at the March 16, 1988 meeting. According to the administrator, Daws was given the opportunity at the March 16, 1988 meeting for another conference "at which point . . . he might wish to pay the amount due, or . . . provide any material or further argument to dispute the finding of [the] audit. The employer declined and was advised that a formal assessment would be sent and that it could be appealed to the Superior Court." Thereafter, a formal assessment of moneys claimed to be due under the act was made. These two appeals followed.
The ABC test is contained in General Statutes § 31-222(a)(1)(B)(ii).
These appeals come before this court in a somewhat unusual posture. The record of the proceedings before the employment security division of the defendant, as certified, contains, inter alia, George's field audit report, which makes certain factual findings and concludes that the remuneration paid to Daws' nurses should be treated as "wages" under the act, specifically General Statutes 31-222, under which it was determined that they were "employees" and not independent contractors as Daws claimed. It also includes an assessment of the taxes (with interest) the defendant found owing from Daws for the tax years involved. The record further states, as noted above, that Daws was given the opportunity for another conference. Thereafter, a formal assessment was sent to Daws, and it was formally advised in writing that any appeal from the defendant's determination that the nurses were "employees" and not "independent contractors" was to be taken to the Superior Court under 31-270. There is no transcript of any sort in the record.
After the appeals had been returned to court, the parties then filed a long "Stipulation of Facts," containing eighty-two separate facts, which had appended to it a number of exhibits. In addition, they also filed a "Stipulation of Joint Exhibits" as well as a "Stipulation of Operative Pleadings." In addition, at the trial, both parties adduced evidence through a number of witnesses and introduced additional exhibits. This entire procedure was agreed upon between the parties.
The manner in which these appeals come to this court, it is thus fair to say, resulted from the conduct of the parties concerning what occurred from the outset of their interaction since the audit proceedings were instituted against Daws by the administrator. The court notes, as does Daws, that our Supreme Court has recently said that "[t]he scope of review in an appeal from an assessment of unemployment tax contributions under General Statutes 31-270 is less than clear. See Beaverdale Memorial Park Inc. v. Danaher, 127 Conn. 175, 181-83, 15 A.2d 17 (1940) . . . ." Latimer v. Administrator, 216 Conn. 237, 245 n. 9, 579 A.2d 497 (1990). Daws points here to Latimer's citation of Beaverdale and claims that where the original assessment was made ex parte and without notice that the appellant is then entitled, under the constitution, to a full hearing after notice and, that "upon such hearing the court shall correct the assessment." Continuing its reference to Latimer, Daws says that in that case "the trial court was permitted to restrict its review to the record developed at the administrative level" because, as the Latimer court said: "Although not provided by statute, the parties agreed to an elaborate procedural arrangement that contemplated and resulted in a full scale hearing before a hearing officer with a resultant finding of facts and a decision." Id. It is noted that Latimer then said: "To ignore the finding of facts and the conclusion of the hearing officer and to treat this appeal [Latimer] as a de novo proceeding would defy common sense and go against the grain of what the parties obviously intended," and the Latimer court concluded that "[t]he trial court did not err by restricting its review to the record developed at the administrative hearing." Id. In contrast to Latimer, Daws argues, no such hearing has been held in these cases but rather, the defendant's decision was the product of a simple audit at the end of which Daws was presented with a fait accompli. Parenthetically, "[a] `hearing' is generally defined as a `[p]roceeding of relative formality . . . generally public, with definite issues of fact and of law to be tried, in which . . . parties proceeded against have [a] right to be heard . . . .' (Emphasis in original.) Black's Law Dictionary (5th Ed.)." Herman v. Division of Special Revenue, 193 Conn. 379, 382-83, 477 A.2d 119 (1984). Daws then contends that, in "keeping" with Beaverdale and the "strong suggestion" of Latimer, it is now entitled to a "full and fair hearing" before this court in which all the relevant evidence can be presented and considered. Daws asserts that its claim here is strengthened by the conduct of the attorney general's office, which, through extensive discovery by deposition, interrogatories and multiple sets of requests for admissions has come quite close, to use Daws' language, to treating these appeals as ones "in which the `administrative record,' such as it is, is a sidelight and [so] a de novo hearing is required."
Unlike Latimer where "[a]lthough not provided by statute, the parties agreed to an elaborate procedural arrangement that contemplated and resulted in a full scale hearing before a hearing officer with a resultant finding of facts and a decision," here there was no full scale hearing or anything of that nature before a hearing officer on these appeals. See Latimer v. Administrator, 216 Conn. 237, 245 n. 9, 579 A.2d 497 (1990). There is also no transcript in the record of what happened when representatives of the plaintiff and defendant met at the postaudit discussion before the issuance of the formal assessment of tax liability. It should also be pointed out that the written stipulation of facts entered into, in very large measure, includes, if not in haec verba, whatever facts were found by the defendant. The live testimony before this court, it is submitted, while in much more detail than the "factual findings" by the defendant at the agency level, will along with all the stipulations be accorded their proper place in determining whether the defendant's conclusions are arbitrary, unreasonable or illegal.
On the other hand, the defendant, referring to his pretrial brief while conceding that the administrator did not hold a formal hearing as in Latimer, argues that he did "[make] findings of fact and conclusions of law underlying his assessment." He claims that those are contained in the April 4, 1988 report that resulted in the assessment. He goes on to contend that "to the extent that the factual basis for the assessment coincides with the facts found on appeal, the court is similarly limited in determining whether the agency's conclusions in the assessment are unreasonable, arbitrary or illegal, and the court should accordingly give considerable deference to those conclusions." In addition, he says that "while the court may consider further evidence [on these appeals], it should defer to the agency's conclusions if based on the same facts ultimately found by the court." Finally, in that earlier brief he maintains that "the proper standard of judicial review is whether the Administrator could reasonably have concluded in his assessment, on a factual basis `followed by the court,' that plaintiff [Daws] failed to sustain its burden of showing that it satisfied part of the ABC test."
In his posttrial brief the defendant says that: "Regardless of the status of this proceeding as a trial de novo on factual issues, the principle of deference to the agency's legal conclusions cited in Latimer and other cases is based on the agency's expertise in the law and in drawing legal conclusions from facts, regardless of the party or the manner of finding the facts and the actual finding of facts by the agency in those cases. Accordingly, it is entirely irrelevant for purposes of deference to the agency's legal conclusions that the facts here are found by the court rather than the agency as long as the facts ultimately found by the court coincide with those upon which the agency's legal conclusions were based." It is in this somewhat unusual fashion that this court is presented with these appeals.
An examination of the case law indicates that the function of a trial court, in reviewing such decisions of the administrator is to determine whether he acted unreasonably, arbitrarily or illegally. See, e.g., Latimer v. Administrator, supra, 245 n. 9; Burnham v. Administrator, 184 Conn. 317, 322, 439 A.2d 1008 (1981); Oppenheimer v. Administrator, 177 Conn. 593, 596, 419 A.2d 337 (1979); Lanyon v. Administrator, 139 Conn. 20, 28, 89 A.2d 558 (1952). In doing so, it cannot substitute its own conclusions for those of the defendant. Kaplan v. Administrator, 4 Conn. App. 152, 153, 493 A.2d 248 (1985).
"The standard for review of administrative proceedings similarly must allow for judicial scrutiny of claims such as . . . error in the construction of the administrative agency's authorizing statute." Burnham v. Administrator, supra, 322. On appeal this court cannot decide the appeal on a ground that was not presented to the defendant below because, to do so, would deprive the defendant of an opportunity to consider such a ground. See id., 323; Neri v. Powers, 3 Conn. App. 531, 539, 490 A.2d 528, cert. denied, 196 Conn. 808, 494 A.2d 905 (1985). There have been circumstances, however, where if the record on appeal from an administrative board "does not sufficiently show the basis of its action," then it has been said, it is permitted to "offer evidence before the court as to the facts, and the court will act on the assumption that they were the basis upon which the board reached its decision." Jaffe v. State Department of Health, 135 Conn. 339, 354, 64 A.2d 330 (1949); see Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 57, 282 A.2d 890 (1971). That problem is not present in the present case as the defendant definitely decided, as the basis of prong its action, that the plaintiff did not satisfy any of the ABC test. The Superior Court has been allowed to hear evidence "to clarify the basis of the commissioner's decision . . . ." Sachem's Head Assn. v. Lufkin, 168 Conn. 365, 366, 362 A.2d 519 (1975). This court approaches these appeals mindful of the standard of review set out, the unusual procedure adopted by the parties, i.e. the stipulation of facts and certain exhibits as well as the extensive discovery undertaken by the attorney general's office, and the live testimony of some eleven witnesses at the trial before this court as well as the admission of certain additional exhibits at that trial.
The defendant has filed three separate sets of requests for admissions which totaled some 141 requests to admit. See Practice Book 238 et seq. The plaintiff replied to these in timely fashion. During the presentation of evidence before this court only one of the 141 requests was referred to. After all the witnesses had testified and the other exhibits had been admitted, the defendant then offered into evidence all those requests that had been admitted in whole or in part by the plaintiff and they were admitted into evidence. The purpose of admitting requests for admissions into evidence is to give the party against whom the admissions are to be used as "an opportunity to test their evidentiary competence or to illuminate their significance." Falcone v. Night Watchman, Inc., 11 Conn. App. 218, 219 n. 1, 526 A.2d 550 (1987). Where, however, evidence contrary to any request admitted in whole or in part came into evidence without objection, prior to the introduction into evidence of any such requests, the defendant here is held to have waived his right to rely conclusively on any such admission. See Larson v. Fazzino, 216 Conn. 431, 435-36, 582 A.2d 179 (1990).
The report initially indicates: "The Employer [Daw's] conducts a professional nurse agency that provides registered nurses and licensed practical nurses from its list of qualified persons to various health institutions, hospitals, etc. [medical facilities] on an as needed basis. [Daw's] invoices the [particular medical facility] for all [such nurses] requested and provided. [Daw's] in turn pays wages to each [nurse] that has been assigned to [a particular health] institution. The difference between the amount [Daw's] invoices the institution and the amount [Daw's] pays in wages to the [nurses it assigns] is [Daw's] gross profit. [Daw's] issues [United States Income Tax Form 1099] annually to the [nurses] but it contends that [the nurses] are outside contractors. [Daw's] maintains a list of nurses. Clients [i.e., a medical facility] contact [Daw's] requesting the services of a nurse. [Daw's] calls nurses from the list until they find one who accepts the assignment. [Daw's] bills the [medical facility] a pre-negotiated fee. [Daw's] pays the nurse a pre-negotiated wage for the services provided. [Daw's] maintains that the nurses were not [its] employees but are actually independent contractors due to their professional status."
The report then states that "[b]ased on Connecticut Statutes it is clear that these nurses are the employees of the employees of [Daw's]. The principal business activity of [Daw's] is to provide temporary or occasional nursing assistance to a client on request."
It goes on to say: "Connecticut State Labor Law Section 31-129(e) states: `Temporary help service' means any person conducting a business which consists of employing individuals directly for the purpose of furnishing part-time, or temporary help to others. By this definition the Employer is a temporary help service. Temporary help services have historically reported persons sent to clients on a temporary basis as employees, as an employer/employee relationship exists under Common Law."
The report states: "Application of Section 31-222(a)(1)(B)(ii) (also known as the ABC test) of the Connecticut Unemployment Compensation Law demonstrates employment as follows: A. DIRECTION AND CONTROL. 1. If the EMPLOYER determines the nurses to be competent, they are placed on the EMPLOYER'S roster (the equivalent of being hired). 2. If the EMPLOYER receives negative reports from the clients, or after further contact with the nurse, the Employer infers that the nurse is incompetent, [it] could remove the nurse's name from the roster (equivalent of being fired). 3. The Internal Revenue Service has ruled in Revenue Ruling 61-196 (copy attached) that: `Hospitals, clinics, nursing homes, public health agencies, etc. engage registered nurses on a full time basis as a part of their regular staffs. The nurses work for a salary and follow prescribed routines during fixed hours. Although their duties are professional in nature, these nurses lose their individuality by integrating their services into the employer's business and by the employer's right to set the order of and supervise their services.'
"Revenue Ruling 75-101 (excerpt attached) in part states: `A company that is in the business of furnishing the services of licensed practical nurses, engages, such persons pursuant to oral contracts. The nurse performs professional nursing services as a licensed practical nurse for the clients of the company. The nurse represents the company, her services are periodically checked by the company, she is issued instructions, paid on a weekly basis, and her services may be terminated by the company. The nurses are not engaged in an independent enterprise in which they assume the risk of profit and loss. Since she is a skilled worker, she does not require constant supervision. Accordingly, it is held that the company retains the right to exercise over the nurse the degree of control and direction necessary to establish the relationship of employer and employee and therefore the nurse is an employee of the company . . . .'"
Concluding on Part A of the ABC test the George report says: "The facts in this case are similar in that the services of the EMPLOYEES are integrated into the business of the employer, direction and control is exercised and the EMPLOYER has the right to discharge the employee."
Turning to Part B the report states: "B. WORK PERFORMED OUTSIDE THE USUAL COURSE OF BUSINESS OR PLACE OF BUSINESS. 1. The EMPLOYER'S business (and profit) depend on the placement of these qualified nurses on a temporary basis into the locations of their clients. In essence, the placing of these nurses is the usual course of business of the EMPLOYER. 2. The client's location becomes a place of business of the EMPLOYER."
As to Part C of the ABC test the George report says: "C. THE INDIVIDUAL IS CUSTOMARILY ENGAGED IN AN INDEPENDENTLY ESTABLISHED PROFESSION OF THE SAME NATURE AS THAT INVOLVED IN THE SERVICE PERFORMED. 1) The EMPLOYER issued 1099s in error. As the nurses were employees, taxes should have been withheld and W-2s issued. 2) Nurses working for other agencies would be employees of the other agencies while they were performing service for them. 3) The nurses lose their independent status when employed by a temporary agency. 4) The nurses are paid on an hourly basis and are not at risk for profit or loss. The nurses would be paid by the company whether or not the client pays the company. 5) The clients are doing business with the company for the purpose of obtaining the services of temporary employees."
The George report then sets out its ultimate conclusions as follows: "THEREFORE, all remuneration paid to these nurses should be treated as liable wages subject to the U.C. Law based on the following: A. Sec. 31-222(b)(1) which states that `Total Wages' means all remuneration for employment. . . B. Sect. 31-222(a)(1)(B)(ii) which states `. . . Service performed by an individual shall be deemed to be employment subject to this chapter irrespective of whether the Common Law relationship of master and servant exists, unless it is shown to the satisfaction of the administrator . . . an independent contractor relationship exists under the ABC Test. C. The application of the ABC Test clearly shows that an employer/employee relation exists as previously demonstrated. However, if any person reading this report is unclear if the relationship exists, they must take into account Sec. 31-274(c) which states `the provisions of this chapter shall be construed, interpreted and administered in such a manner as to presume coverage . . . in doubtful cases.' D. Sect. 31-272 states `No agreement by an employee to waive, release or commute his rights to benefits or any other rights under this chapter shall be valid.'"
At the end of his report, dated April 4, 1988, this paragraph: "Upon presentation of the assessment based upon the audit of the records, the aforementioned factors were discussed. The employer was given the opportunity to have another conference at which point that he might wish to pay the amount found to be due, or to provide any material or further argument to dispute the findings of this audit. The employer declined and was advised that a formal assessment would he sent; and that it could be appealed to the Superior Court."
Before going into an analysis certain relevant legal principles are noted. Under 31-222(a)(1)(A) of the Unemployment Compensation Act the term "employment" means "[a]ny service . . . performed under any express or implied contract of hire creating the relationship of employer and employee . . . ." Section 31-222(a)(1)(B) of the act provides, inter alia, that "employment" means: "Service performed by an individual shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the administrator that (I) such individual has been and will continue to be free from control and direction in connection with the performance of such service and in fact; and (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed . . . ." This is the act's ABC test.
This statute, as it presently stands, not only codifies common law rules used to determine the existence of an employer-employee relationship, but also incorporates what is known "in Connecticut and throughout the country in similar legislation as the `ABC test' [and this test is used] to ascertain whether an employer-employee relationship exists under the act." Latimer v. Administrator, supra, 246; F.A.S. International, Inc. v. Reilly, 179 Conn. 507, 511, 427 A.2d 392 (1980). For the plaintiff to prove that it is not an employer and, thus, has no liability under the act for unemployment taxes, it must show that it has satisfied all three prongs of the ABC test. Latimer v. Administrator, supra, 247. In other words, the ABC test is conjunctive; all three parts must be satisfied in order to exclude an "`employer from the [unemployment compensation] Act.'" Id.; see F.A.S. International, Inc. v. Reilly, supra. Thus, Daws, in claiming an exemption from payment of unemployment taxes under the ABC test has the burden of proving that it comes within that exception, and exemptions to statutes are to be strictly construed. Conservation Commission v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1981); Aaron v. Conservation Commission, 183 Conn. 532, 549, 441 A.2d 30 (1981). This court is aware of 31-274(c) of the act, which provides that: "The provisions of this chapter [unemployment compensation] shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualification in doubtful cases." While it may be difficult for a situation to exist where an "employer" sustains his burden of proof under the ABC test as it did in F.A.S. International, it is important to consider that "[t]he exemption [under the Unemployment Compensation Act] becomes meaningless if it does not exempt anything from the statutory provisions"; Erspamer Advertising Co. v. Department of Labor, 214 Neb. 68, 75, 333 N.W.2d 646 (1983); where the law and the facts merit the exemption in a given case.
In this matter the plaintiff maintains that it has proven nonliability under the ABC test while the defendant maintains that the plaintiff has failed to satisfy any prong of the ABC test. The plaintiff vigorously claims that the application of the F.A.S. International case to the facts requires judgment in favor of Daws, while the defendant claims that the plaintiff's "reliance on F.A.S. is absurd." The administrator, in asserting Daws' liability, also argues that "the specific criteria identified in Latimer are satisfied . . ." in an "incredibly transparent fashion." Daws, on the other hand, while asserting its satisfactory proof of every prong of the ABC test, asserts that it is "unfathomable" why the administrator has not conceded here, the satisfaction of part B of the test as he did in F.A.S. International. It does bear pointing out that all three prongs were passed upon in F.A.S. International, whereas in Latimer the court's holding only concerned part A because, as that court said, it was "[u]nnecessary [for the court] to consider prongs B or C." Latimer v. Administrator, supra, 252.
I
In taking up the ABC test in the present case, part A will be examined first. Under that part Daws bore the burden of proving under the statute that its nurses have "been and will continue to be free from any control or direction" in connection with the performance of such service, "`both under [their] contract [for the performance of service] and in fact.'" F.A.S International, Inc. v. Reilly, supra, 511-12. "Part A of the test invokes essentially the same criteria as the independent contractor test at common law." Id., 512.
"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. Beaverdale Memorial Park, Inc. v. Danaher, [supra, 179]; Northwestern Mutual Life Ins. Co. v. Tone, 125 Conn. 183, 190, 4 A.2d 640 (1939); Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 524, 28 A. 32 (1893); see Yurs v. Director of Labor, 94 Ill. App.2d 96, 103, 104, 235 N.E.2d 871 (1968). The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent. Hartley v. Red Ball Transit Co., 344 Ill. 534, 539, 176 N.E. 751 (1931). Caraher v. Sears, Roebuck Co., 124 Conn. 409, 413-14, 200 A. 324 (1938). An employer-employee relationship does not depend upon the actual exercise of the right to control. The right to control is sufficient. Id.; Zimmer-Jackson Associates, Inc. v. Department of Labor, 231 Mont. 357, 361, 752 P.2d 1095 (1988); Prime Kosher Foods, Inc. v. Bureau of Employment Services, 35 Ohio App.3d 121, 123, 519 N.E.2d 868 (1987). The decisive test is who has the right to direct what shall be done and when and how it shall be done? Who has the right of general control? Thompson v. Twiss, 90 Conn. 444, 447, 97 A. 328. (Emphasis added.) Caraher v. Sears, Roebuck Co., supra, 413; Northwestern Mutual Life Ins. Co. v. Tone, supra, 191; Bennett v. Department of Employment Security, 175 Ill. App.3d 793, 797, 530 N.E.2d 541 (1988)." (Internal quotation marks omitted.) Latimer v. Administrator, supra, 248. An independent contractor has been said to be "`one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work'" Darling v. Barrone Bros. Inc., 162 Conn. 187, 195, 292 A.2d 912 (1972), quoting with approval from Alexander v. R.A. Sherman's Sons Co., 86 Conn. 292, 297, 85 A. 514 (1912). Only recently our Supreme Court has said that: "This definition has been amplified in subsequent cases but at no time has the basic principle been altered." Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 639, 573 A.2d 724 (1990).
The analysis in the report as to part A, which it captions "DIRECTION AND CONTROL," will be examined next. The report's part A analysis contains three subdivisions. The first indicates that if the Daw's finds the nurses to be "competent," they are placed on a roster, which the report notes, is "the equivalent of being hired." While "competent" may not quite be used here in its commonly accepted sense, it is apparent that to be "competent," the nurse had to that she or he held a currently valid Connecticut nursing license and possessed a certificate of malpractice insurance currently in force. It is difficult to understand how the report could determine this when the record does not indicate that, prior to the of the report, the defendant had ever heard any evidence. As set out above, there is no transcript of anything that transpired before the assessment appealed from was decided upon. The stipulation of facts and the evidence at trial, however, do support this finding. Second, the report found that if Daw's "receives negative reports from the clients," or after further contact with the nurse, Daw's "infers that the nurse is incompetent," it could remove the nurse's name from the roster, which the report notes is the "equivalent of being fired." Insofar, as the factual basis of this finding in the report, it is submitted that there is none as again there is no evidence in the record at that time upon which to premise that finding. Insofar as finding justification for that in the stipulations, this the court cannot do. There is also no evidence before this court to prove that "if" Daw's received "negative reports" or after further contact with the nurse, Daw's "infers" the nurse is "incompetent" that Daw's "could" remove their name from the roster, and, in effect, "fire" such a nurse. It is true, however, that for a nurse to be accepted by Daw's for eligibility for assignments, that nurse would have to hold a currently valid Connecticut nursing license and possess a certificate of malpractice insurance currently in force.
It is acknowledged that Latimer points out that the right to terminate without liability is not consistent "with the concept of an independent contractor" and is "a strong indication" of an employer-employee relationship. Latimer v. Administrator, supra, 249. In that case, however, the court did not consider the conceded retention of that right by the plaintiff as conclusive of the issue of control but did weigh it along with other evidence in its close analysis of that issue. Accordingly, the "right to fire" is to be given the weight Latimer indicates with all the evidence on control. It is puzzling to this court to have the George report find as a fact or conclude as a matter of law, on its second subdivision of its part A analysis, as it did concerning the equivalent of being hired and fired, when the return of the record filed in court contains no information upon which to base that. Consequently, this court looks to the stipulations filed just prior to trial and to the evidence adduced at trial on this element on the issue of control. Such evidence was presented. There was evidence that tended to indicate that Daws could terminate any assignment on at least four hours notice for any cause without Daws being liable except that the nurse had to be paid for any time she was actually on that assignment. The term "assignment" as fleshed out by the evidence is perceived to be understood as meaning a nurse's undertaking to work at a particular medical facility, for a particular period be it a day, a week, a weekend or more. Despite the fact that no Daw's was ever terminated, this evidence is to be weighed with all the other evidence on control in accordance with such cases as Latimer and Beaverdale.
The court is aware that the test of the relationship does not depend upon the actual exercise of the right to control by Daw's but that the existence of the right to control is sufficient. But it is submitted that Daw's did not have the general right to control their nurses in the sense that our cases, including Latimer, have perceived that. It had no such control or even the right to control over the means and methods of the nurses' services rendered at the medical facilities where their assignments took them. In discussing the right of general control in this context the cases cited point out that the decisive test is who has the right to direct what shall be done and when and how it shall be done. Daw's function, after satisfying itself that a nurse was "competent" was fairly limited to arranging times mutually convenient for the nurse and the particular medical facility where the nurse's services were to be rendered and examining a nurse's pay invoices when submitted to it for payment and in making payment. It did not have "the right to general control of the activities." See Latimer v. Administrator, supra, 248. Once the assignment to a particular medical facility was offered by Daws and undertaken by a Daws nurse, the nurse went there and, subject to the protocol of that facility, rendered her professional services under that facility's direction. The evidence established that its nurses could trade shifts after an assignment at a medical facility Daw's serviced. This was done without the nurse being required to report such shift trades to Daw's although there were instances where, as a matter of professional courtesy, a Daw's nurse would report a trade shift to Daw's.
The defendant places great stress on the decision of its board of review in Hartford Dialysis v. Administrator, Employment Security Appeals Division, Board of Review, Case No. 995-BR-88 (December 27, 1988) (Hartford Dialysis), in which that board concluded that Hartford Dialysis had not proven that the services performed by the dialysis nurses at Hartford Hospital came within the statutory exception to employment subject to the Unemployment Compensation Act under 31-222(a)(1)(B)(ii). That case found against Hartford Dialysis on all three prongs of the ABC test. Hartford Dialysis, a long, well crafted decision, is factually distinguishable from the case presently before this court. In that case, the dialysis nurses involved all worked at the dialysis unit at Hartford Hospital. There, Hartford Dialysis was, unlike Daws, responsible for and did supervise the nurses' services on those premises. There, the claim of Hartford Dialysis that their hemodialysis council made all decisions regarding staffing and scheduling was found not to be so. The right to discipline and reprimand clearly existed. Actually, it would appear that that very case itself arose because the claimant was terminated for her refusal to service patients testing positive for the acquired immune deficiency syndrome (AIDS) virus. Hartford Dialysis itself had the final approval of how many and which nurses it would use to provide the service. Moreover, it was found that the nurses' responsibilities were "broader than the mere application of the dialysis procedure and" that they were "an integral part of the health care team" rather than independent contractors. In that case, unlike Daws, Hartford Dialysis, in undertaking the administration, supervision and management of all dialysis procedures rendered, was properly held to control the "method of providing the dialysis services." This court believes that the factual dissimilarities in Hartford Dialysis on the part A issue militate against giving it that weight which the defendant claims.
Moreover, unlike the personal care assistants (PCAs) in Latimer where Latimer established the hours when they were to work, Daw's did not do so in the present case. Again, unlike the PCAs in Latimer Daw's did not furnish any materials or tools necessary to do their job. Insofar as who furnishes the tools, materials or equipment to be used in the services involved, it is essential to keep in mind the rationale underlying that criterion. When it is the employer who does so the inference of right of control in the employer is a matter of common sense and business, otherwise it is not. See 1B A. Larson, Workmen's Compensation Law § 44.34(b).
The lack of a right to control is further indicated by the proof that no representative of Daw's ever visited a medical facility to check on the performance of any of their nurses. The court also notes that Daw's did not conduct any orientations for its nurses nor did it have any manual of instructions that it issued to them. In this context it is significant to point out that the George report, in its third subdivision of its part A analysis, refers to two Internal Revenue Service Rulings (i.e. Revenue Rulings 75-101 and 61-196) and its part A analysis selectively quotes portions of each. An examination of the entire text of Revenue Ruling 75-101 in Internal Revenue Cumulative Bulletin 1975-1 (January — June) is illuminating and merits comment. This ruling does contain a number of circumstances that are found in the present case, but, the report specifically refers also to Revenue Ruling 61-196 which provides that "whether a nurse is self employed or an employee depends upon the facts and the circumstances of each case." In addition, among the background circumstances that were present in Revenue Ruling 75-101, a close examination of that entire ruling discloses the following: "the company employer issues instructions to the nurse regarding her professional appearance and conduct while on assignment, and periodically checks with each client to determine if the nurse's services are satisfactory. In addition, the company employs a visiting registered nurse, on a full time basis, to make periodic on-the-job visits to evaluate the professional competence of the practical nurse. When appropriate, the visiting nurse has the authority to make recommendations to the practical nurse that regarding the care of the patient. It is understood the practical nurse will follow these recommendations." No such indicia of control were present in the present case as in Revenue Ruling 75-101.
In Robert C. Buell Co. v. Danaher, 127 Conn. 606, 18 A.2d 697 (1941), a case involving an assessment under the Unemployment Compensation Act, the court had occasion to consider the argument that a ruling by the deputy commissioner of the United States Internal Revenue Service was in the nature of a precedent because the factual situation upon which the IRS ruling offered was based was claimed to be the same as the facts in Buell. Our Supreme Court affirmed the trial court's ruling in Buell excluding that ruling noting that it was not binding on the trial court "which could decide the case only upon the facts before it and the principles of law in effect in this state." Id., 612-13.
Some medical facilities where Daws nurses had undertaken assignments required that Daws nurses wear name tags on which appeared "Daw's Critical Care Registry" and the name of the nurse wearing it. The wearing of this tag was required not by Daws, but by certain medical facilities that were Daws clients. This aspect militates for Daws on the control issue.
There is no question but that Daws processed the invoices submitted to it by its nurses for payment for their nursing services at whatever medical facility they might work. These invoices were on forms provided by Daws and the times indicated thereon as having been worked had to be certified to by a supervisor at that particular facility before being processed by Daws. Payment was at an hourly rate. The defendant, in arguing that the Daws nurses are employees, maintains that "the hourly rate of pay criterion is not merely satisfied; instead a comprehensive pay scheme on an hourly and continuing basis during a nurse's performance of service is established." This defendant contends that the "hourly rate criterion" differs from payment of an independent contractor at the end of an entire project without taking account of the number of hours worked on the project. This court believes otherwise. "The manner of remuneration, whether in wages, salary commission, by piece or job, is not decisive or controlling in determining whether one is an employee or an independent contractor exercising control over the manner of his own work." Darling v. Burrone Bros., Inc., supra, 193; see Bourget v. Overhead Door Co., 121 Conn. 127, 131, 183 A. 381 (1936). In other words, the method used to determine the payment to be made for the work done is not of "controlling significance." Caraher v. Sears, Roebuck Co., supra, 414. The circumstance that the nurses of Daw's were paid on a weekly or biweekly basis is of little significance where the reality is that the payor (Daw's), in effect, served in the nature of conduit for payment. Trauma Nurses v. Board of Review, 242 N.J. Super. 135, 147, 576 A.2d 285 (1990). The implication that there is a "comprehensive" pay scheme which shows control or the right to it is not borne out by the evidence. There was an uncomplicated hourly rate and for part of the period involved in these cases an uncomplicated vacation bonus arrangement. The attempt to use the time invoices of the nurses to claim that nurses had to report to Daw's daily as the PCAs did in Latimer is simply not so. These were time cards certified to by a facility supervisor as to time worked over a pay period so as to allow Daw's to pay its nurses, and that was all.
The defendant argues that because a nurse who found herself unable to perform an agreed assignment on a given day had to give Daw's four hours notice of that so as to enable Daw's to find a replacement among its other nurses "certainly constitutes substantial encouragement of replacement through [Daw's]." What this has to do with control is not wholly clear. If, however, it suggests that Daw's endeavored to replace a "cancelled" assignment with another nurse, Daw's may well have done that in the interest of good business relations with a particular medical facility. Its bearing on control of its nurses, however, again, is not at all clear.
The court agrees with the defendant that the characterization, in an employment agreement between Daws and any nurse, that Daw's "does not have or reserve any direction or control over my activities and that [the nurse] is not an agent, servant of DAW'S but an INDEPENDENT CONTRACTOR" is certainly not controlling. It is, however, entitled to some consideration on the matter of control. See Burchesky v. Department of Employee Training, 154 Vt. 355, 361, 577 A.2d 672 (1989); 1 Restatement (Second), Agency 220. The primary concern is what is done under the contract. Latimer v. Administrator, supra, 251.
The court recognizes that an agency's decision is entitled to the presumption of validity. It has been said that: "The agency's practical construction of the statute, if reasonable, is `high evidence of what the law is.'" Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 552, 436 A.2d 266 (1980); Anderson v. Ludgin, 175 Conn. 545, 556-57, 400 A.2d 712 (1978). It is also acknowledged that a reviewing court is not empowered to substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In addition, having in mind the standard of review set out earlier which may be applied, inter alia, to an agency's error on the construction of one of its governing statutes in a given situation; see Burnham v. Administrator, supra, 322; a court may conclude that the agency's ultimate conclusion does not meet that standard — and it does not here.
Under all the evidence, the court concludes that the facts found demonstrate that the deference ordinarily accorded the decisions of administrative agencies in construing and applying statutes in their ken; see, e.g., Preston v. Department of Environmental Protection, 218 Conn. 821, 830, 591 A.2d 421 (1991); cannot be extended to the conclusion of the George report that Daws did not satisfy part A of the ABC test.
II
Next, the court turns to the analysis of part B of the ABC test of the George report captioned: "WORK PERFORMED OUTSIDE THE USUAL COURSE OF BUSINESS OR PLACE OF BUSINESS." That report contains two statements. The first is that "the EMPLOYER's business (and profit) depend on the placement of these qualified nurses on a temporary basis into the locations of their clients. In essence, the placing of this nurse is the usual course of business of the EMPLOYER." The second states that "the client's location becomes a place of business of the EMPLOYER." Again, while no evidence was taken by the defendant, this court agrees that the business of Daw's did depend, as the evidence before this court shows, upon the placement of qualified nurses on a temporary basis into medical facilities. The court cannot, however, agree that anything in the record at the time of the George report demonstrates that the "client's location becomes a place of business of the EMPLOYER" insofar as that is suggested to play into part B of the test. The evidence before this court, therefore, must be examined as to that aspect just as it must as to the position in that report that the client's location becomes a place of business of Daw's.
Part B of the ABC test in our statute says: "such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed . . . ." General Statutes § 31-222(a)(1)(B)(ii)(II).
As to part B, the defendant's brief maintains that "the critical inquiry for purposes of [p]art B of the ABC test is whether plaintiff provides nurses' services at medical facilities." This, he claims, depends upon the relationship between the plaintiff's payment to the nurse and the facilities' payments to the plaintiff. He also claims that "the dependence of plaintiff's payment of nurses for their services and facilities payments to plaintiff for those services is dispositive because it establishes plaintiff's economic dependence on provision of nurses' services at facilities and absence of a conduit for facilities payments to the nurses." The payment arrangements are dispositive because, he continues, the statutory language of part B focuses on the "general nature of the business in terms of simple economic reality rather than the complex inquiry into the right of control required by [p]art A." The plaintiff disagrees with such claims.
Connecticut authority as to part B analysis is "limited" as noted in Hartford Dialysis v. Administrator, Employment Security Appeals Division, Board of Review, Case No. 995-BR-88 (December 27, 1988) (Hartford Dialysis). The Supreme Court in Latimer did not discuss part B (or part C) in its opinion. Interestingly, although the trial court in Latimer disposed of that case under part B with a limited analysis, the Supreme Court affirmed by resting its opinion entirely on part A. F.A.S. International had no need to discuss part B as the defendant administrator in F.A.S. International conceded that part B was satisfied. Hartford Dialysis, a board of review case under the act, upon which the defendant places great stress, found that the appellant there had not demonstrated nonliability under part B. That case is distinguishable also for our part B analysis because factually, inter alia, the dialysis services were performed in only one place (i.e. Hartford Hospital), which in that case had to be the place of business of the enterprise for which the service was performed and all the nurses involved in the service performed their services at that premises and at no other place.
Other court decisions, however, provide some guidance for part B analysis. Where an "employer" is in the business of supplying medical facilities with nurses on a temporary basis and those nurses do not work in the "employer's" office but at client medical facilities, that "employer's" business is brokering nursing personnel to such facilities and satisfies part B of the ABC test. Trauma Nurses v. Board of Review, supra, 147-48. Where adjunct faculty taught courses in localities away from the college's offices, such localities were considered the college's places of business as the college was in the business of educating students. Vermont Institute of Community Involvement, Inc. v. Department of Employment Security, 140 Vt. 94, 436 A.2d 765 (1981).
Daw's argues that it, in effect, brokers nursing personnel. A "broker" has been said generally to be one whose business it is to bring buyer and seller together. See Philadelphia Tax Review Board v. Toben, 32 Pa. Commw. 537, 379 A.2d 1361, 1365 (1977). A "broker" has also been said to be a "middleman or negotiator between parties." Black's Law Dictionary (6th Ed.) There can be little question but that Daw's is in the business of providing, indeed brokering, nurses to its clients' medical facilities. There also can be little question but that the nurses so provided furnished their professional services at the particular medical facility. Once, however, they went on an assignment, Daw's had no control over them, certainly as to how they performed their services. Daws was not in the business of providing health care at any client's medical facility. In other words the business of providing health care personnel does not translate into the business of caring for patients. See Trauma Nurses v. Board of Review, supra, 147. As in Trauma Nurses, the "simple and overriding fact" is that Daw's does not perform patient care but it brokers nurses. In so doing it is nurses who perform nursing services when at medical facilities, which is a function beyond the usual course of Daw's and beyond what, in fact, it holds itself out to do.
Moreover, the words "of the enterprise" in part B does not change this because the "enterprise" in which Daws is engaged is providing nurses to medical facilities and no more. To say, as the defendant suggests, that because Daws is in a business the nature of which cannot take place on its own premises, but only in medical facilities, and that the latter locations must necessarily be within the "enterprise" and are thus subsumed within "place of business" as the court did in State Department of Labor v. Medical Placement Service, 457 A.2d 382 (Del. 1982), is wide of the mark for at least two reasons. First, it misconceives what Daws does and all it does — furnish nurses. Second, under such reasoning there would be little, if any, need for part B to be an element of an exemption which the legislature expressly included in this statute proving that the legislature contemplated that there are those who might demonstrate entitlement to such an exemption. Daws obtains the moneys by which it pays the nurses and itself from moneys paid to it by medical facilities for the services of Daws nurses. Daws is actually only a conduit for payment of the nurses by the particular medical facility involved. This court, thus, rejects the defendant's claim that the method of payment is dispositive of part B. The Vermont Supreme Court, in finding an employer-employee relationship, pointed out that expressed intention (where the employment agreement declared that the relationship was not one of employer-employee but one of independent contractor) should not be preferred over the reality of the situation so as to defeat the broad purpose of the unemployment compensation statute. Nevertheless, that court went on to say that "[o]n the other hand, the `ABC' test does not hamper those who undertake to do business together as independent contracting parties, rather than as employer and employee." Burchesky v. Department of Employment Training, supra, 361. Nor should it hamper here where the plaintiff has demonstrated that it has satisfied part B. Part B has been satisfied by the plaintiff and the defendant's conclusion to the contrary cannot stand.
III
Part C of the ABC test under § 31-222(a)(1)(B)(ii)(III) provides that "such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed . . . ."
Here again the factual findings of the George report are not based on any evidence that was heard or introduced at a "hearing" as that has been defined above. Consequently, for support the court must again look, as earlier, to such things as pretrial discovery including the answers to the requests to admit, the stipulations, and the evidence adduced at the trial. It seems to this court that the first statement under the report's part C analysis is quite conclusory and merely adds up to saying that Daws was "in error" in issuing 1099s because its nurses were employees from whose wages Daws should have withheld taxes and issued W-2s. Likewise, the statement that Daws' nurses working for other agencies would be employees of such agencies has no basis in fact when the George report was written and is also conclusory. To say, without evidence, that nurses lose their "independent status" when employed by another agency is again stating a conclusion not based on fact. The balance of the statements in that report under part C stand on a somewhat different footing. Here we refer to the statements that the nurses are paid on an hourly basis and are not at risk for profit or loss, that Daws would pay the nurses whether or not the client medical facility paid Daws and that the client medical facilities are doing business with Daws for the purpose of obtaining the services of temporary employees. Again, while George held no hearing and took no evidence, this court can say, considering everything before it, that these three statements can be found to be true as factual matters. The George analysis, however, does not permit its conclusion that Daws does not come within part C of the ABC test. It, therefore, becomes necessary to determine on all the evidence before this court whether that is so.
First, however, one aspect of the defendant's position that is of concern to this court must be addressed. First, he argues that "unlike [p]arts A and B of the ABC test, which focus on the individual's relationship to the alleged employer, [p]art C focuses precisely on the individual's activities independent of the alleged employer." He then goes on to claim that "while an individual's testimony might be relevant to an alleged employer's general business practices applicable to the group for purposes of [p]arts A and B, testimony of an individual's own independent activities is irrelevant to another individual's independent activity." His argument here then comes down to this: because each individual's independent activities for purposes of part C can be so different, then Daws has clearly not met the burden of proof in part C as to all those nurses working for it between 1985 and 1987 who did not testify in court in these cases. On the one hand, six Daws nurses did in fact testify in court in addition to Karen Whyko, the president of Daws. On the other hand, the parties stipulated in writing that Daws paid 211 nurses in 1985, 254 in 1986 and 273 in 1987. It is not quite fair for the defendant to claim as he now does — certainly as to all those Daws nurses who did not testify — that Daws has not carried its burden as to part C. While this court does not have a transcript of the trial, its recollection is that the defendant took the position that Daws did not have to put every nurse on the witness stand to determine her status. Moreover, the defendant's present position was not the theory upon which Daws presented the cases and the defendant defended the present cases. Further, the defendant made no motion at the end of the trial that would serve to alert the court or opposing counsel to this matter. Finally, the court believed from what was apparent to it through the end of the trial that it could rely on all the evidence in determining throughout the status of the persons involved who were similarly situated insofar as Unemployment Compensation Act tax liability of Daws for all its nurses was involved. The court says "similarly situated" because that was the clear impression it received. It would be facile to say that the defendant apparently had no problem finding all the Daws nurses similarly situated when it issued its assessments covering all of them in the first instance. It prefers, however, to take the position that it must find against Daws as to part C as to its present claim of the failure of Daws to sustain its burden as to all nurses not testifying. Accordingly, the court rejects this claim of the defendant and will rest its resolution of the part C issue on the law and the evidence as applied as to all Daws nurses regardless of whether they testified.
Before going into an analysis, the court first examines the statute closely as to part C. The court notes that the adverb "independently" modifies the word "established" and in that context, fairly construed, means that the trade, occupation, profession or business was established independently of the "employer" (Daws). See, e.g., Vermont Securities, Inc. v. Vermont Unemployment Compensation Commission, 118 Vt. 196, 201, 104 A.2d 915 (1956). Moreover, such "independently established activity" must be one in which the "employee" is "customarily engaged." "Customarily" has been said to mean "usually, habitually, regularly." See, e.g., South Dakota Department of Labor v. Tri State Insulation Co., 315 N.W.2d 315, 316 (S.D. 1982); Fuller Brush Co. v. Industrial Commission, 99 Utah 97, 102, 104 P.2d 201 (1940). The use of "is," the present tense, shows that the "employee" must be engaged in such independently established activity at the time of rendering the service which is the subject of inquiry. An established business has been said to be one that is "permanent, fixed, stable, or lasting." Unemployment Compensation Commission v. Collins, 182 Va. 426, 437, 29 S.E.2d 388 (1944); see also Vermont Securities, Inc. v. Vermont Unemployment Compensation Commission, supra, 201. In speaking to the language "customarily engaged in an independently established profession" our Supreme Court has said that "this requires one or more enterprises created by [the artists, writers, photographers employed by the plaintiff F.A.S.] which exist separate and apart from their relationships with [their employer] F.A.S. and which will survive the termination of that relationship. The performance of like services by the [F.A.S.] artists, writers and photographers must be independent of whatever connection they have with F.A.S., [their `employer'] and their continued performance of such like services must not be subject to their relationship with the principal [F.A.S.]." F.A.S. International, Inc. v. Administrator, supra, 515.
Applying these principles, the court examines the evidence to determine whether Daws has sustained its burden of proof as to part C. Daws nurses were "customarily engaged in an independently established . . . profession. . . ." Here the court notes that part C in our statute refers to "an independently established trade, occupation, profession or business . . . ." These four terms are in the disjunctive. The Daws nurses were in a "profession." The term "profession" implies "knowledge of an advanced type in a given field of science or learning gained by a prolonged course of specialized instruction and study." People ex rel. Tower v. State Tax Commission, 282 N.Y. 407, 412, 26 N.E. 955, 13 N.Y.S.2d 727 (1940). The Daws nurses were in an independently established profession as the result of having been licensed by the state after completing a long course of instruction and study. In Connecticut the Board of Examiners for Nursing has jurisdiction by statute to hear all charges of conduct which fail "to conform to the accepted standards of the nursing profession" and it has such jurisdiction as to registered nurses and licensed practical nurses. See General Statutes 20-99(a). They were also "customarily" so engaged in that profession as defined. This calling is "independently established." It exists separate and apart from their relationships with Daws and it will survive the termination of their relationship with Daws. See F.A.S. International, Inc. v. Administrator, supra, 515. According to Whyko, well over a majority of Daws nurses worked for other agencies at other medical facilities performing similar services while also working on assignments through Daws. The performance of such "like services" was independent of "whatever connection" they had with Daws and the continued performance of such "like services" was "not subject to their relationship with the principal [Daws]." See F.A.S. International, Inc. v. Administrator, supra. The independently established nature of their nursing profession permits them to continue therein even after their relationship with Daws terminates.
Hartford Dialysis, supra, states that the dialysis nurses, though permitted to perform their services for other entities than Hartford Dialysis "do not customarily do so" and "are not customarily engaged in an independently established business or profession of the same nature." Continuing its part C analysis, Hartford Dialysis points out that most of the nurses there, approximately thirty in number, were trained by Hartford Dialysis and "have worked almost exclusively for Hartford Dialysis since they were trained." In that case the opinion speaks of a "suggestion" that other of its nurses "might have worked for [other] facilities . . . no details are contained in the record." Such factual circumstances serve to distinguish Hartford Dialysis from Daws on part C analysis.
The defendant makes much use of the terms "enterprise" and "business" in arguing on part C. He seizes upon the term "enterprises" as used in F.A.S. International, Inc. v. Administrator, supra, 515, where it says that the "`customarily engaged . . . profession'" language of part C "requires one or more enterprises [to be] created . . . which will survive the termination of [their] relationship [with F.A.S.]." This, he says, requires an individual's own business rather than a mere license to conduct business "indicating that any doubt that the independent business requirement extends to professionals under the statutory reference to `an independently established profession'" is removed by the Supreme Court's reference in F.A.S. International "to require enterprises created by the individuals" — in F.A.S. International the professional artists, writers and photographers and in the present case the Daws nurses. The court does not agree as much of what was just said in the analysis under part C applies to this claim of the defendant. The terms "enterprise" and "business" as used by the defendant, however, do not alter that analysis. It is reasonably arguable that the terms "trade, occupation, profession or business" used in part C comprehensively subsume the spectrum of services capable of being rendered by a person, individual or corporation. The court has chosen to regard nursing as a "profession" for the reasons already given to which it can also be added that the statutory scheme also appears to refer to it similarly. See, e.g., General Statutes § 20-99(a) and (b).
The court does not agree that F.A.S. International "required" the individuals there involved to have an "independently established business" in the sense that the defendant suggests that term be used. The defendant claims here that Daws nurses were required, in effect, to have a saleable business before they could be considered customarily engaged in an independently established profession. There he argues that the statute as well as F.A.S. International so requires. This court submits that our statute does not impose such a requirement; the defendant points to no language tending to such a construction. In that regard this court is mindful that even where there is a legislative mandate to apply a liberal interpretation to a statute, that still does not justify judicial creation of rights or liabilities under the guise of construction. See, e.g., Rines v. Scott, 432 A.2d 767, 769 (Me. 1981); J. Sutherland, Statutory Construction (5th Ed. 1992) § 58.05.
Coming back to the defendant's stress on "enterprises" as used in F.A.S. International, the court agrees with Daws that even though the artists, writers and photographers in F.A.S. International did not have saleable businesses created by them, they were, nonetheless, considered to have created "enterprises" separate and apart from this relationship with F.A.S. An examination of F.A.S. International particularly as to its use of "enterprises" is to be done in the light of the facts under discussion there. See Armour Co. v. Wantock, 323 U.S. 126, 132, 65 S.Ct. 427, 89 L.Ed. 118 (1944). A fair reading of F.A.S. International is that the performance of "like services" by the F.A.S. performers existed "separated and apart from their relationships with F.A.S." and that relationship would survive the termination of their relationship with F.A.S. as those were considered "enterprises" as F.A.S. International employs that term. Such a reading when applied to Daws' nurses supports the view that they too can be considered to have created "enterprises" in the F.A.S. International sense. Keeping in mind the remedial nature of our Unemployment Compensation Act and specifically part C, we can say that under the facts of the present case the Daws nurses are not at the risk of economic risk of unemployment by the conduct of Daws as these nurses are customarily engaged in an independently established profession which constitutes a means of livelihood quite apart from their relationship with Daws. This court concludes, while extending the required deference, that the defendant's conclusion as to part C cannot stand and that Daws has sustained its burden of proof of satisfying part C of the ABC test.
IV
The Unemployment Compensation Act is remedial legislation and, as such is "`to be construed liberally as regards beneficiaries to accomplish its purpose. which is to ameliorate the tragic consequences of unemployment.'" Reger v. Administrator, 132 Conn. 647, 650, 46 A.2d 844 (1946); see Robert C. Buell Co. v. Danaher, supra, 612. A cardinal rule of statutory construction is that statutes are to be construed to give effect to the apparent intention of the law making body. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 434 A.2d 293 (1980). Another such rule is that the legislature is presumed to have had meaning as to every word it used in enacting a statute. The present case is not like Burnham v. Administrator, supra, where the trial court was asked to imply an exception despite the categorical language of the statute. See Burnham v. Administrator, supra, 324. The present case is one where there is express language of exception within which the court finds the plaintiff has proven that it falls. In F.A.S. International, where it held that the artists, writers and photographers had satisfied the ABC test, the court went right on thereafter to say that "[i]n Halabi v. Administrator, 171 Conn. 316, 322, 370 A.2d 938 (1976), however, decided after the ABC test was included in the statute, the court stated that although the Unemployment Compensation Act should be construed liberally in favor of beneficiaries in order to effectuate its purpose, it should not be construed unrealistically in order to distort its purpose. see also Furber v. Administrator, 164 Conn. 446, 454, 324 A.2d 254 (1973)." F.A.S. International, Inc. v. Reilly, supra, 516.
Under all the circumstances this court concludes, even after extending the deference to be accorded the decision of the defendant, that both appeals must be sustained. This determination does not involve the substitution of the court's judgment for that of the defendant's, but is required where it has been proven that the "administrator's conclusion, assessing contributions against the plaintiff, was unreasonable, arbitrary or illegal." Latimer v. Administrator, supra, 245 n. 9; see Burnham v. Administrator, supra, 317; F.A.S. International, Inc. v. Reilly, supra, 507. It is pointed out that these appeals cannot be concluded, as the defendant seems to suggest, to be "doubtful cases" as that term is set out in General Statutes § 31-274(c).
This court concludes that, under the circumstances, sustaining the appeals in each of these two cases does not hamper the purposes of the act where, as here, Daw's demonstrates that the defendant was in error in holding that each prong of the ABC test had not been satisfied.