Peddle v. Finish Line Cafe

The claimant was represented by Carlos M. Santos, Esq., Polinsky & Santos, 890 West Boulevard, Hartford, CT 06105-4138.

The respondent-employer was represented at the trial level by Neil Johnson, Esq., 250 Hudson Street, Hartford, CT 06106. The respondent-insurer was represented by Jason Dodge, Esq. and Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the February 27, 1992 Ruling on Claimant’s Motion to Preclude Defense and Finding and Dismissal of Claim of the Commissioner for the Second District was heard October 29, 1993 before a Compensation Review Board panel consisting Commission Chairman Jesse Frankl and Commissioners Frank J. Verrilli and James J. Metro.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 27, 1992 Ruling on Claimant’s Motion to Preclude Defense and Finding and Dismissal of Claim of the Commissioner for the Second District. In that finding, the commissioner held that the claimant was not an employee of the respondent-employer, and that at the time claimant suffered her injuries, they were the result of her intentional acts. Consequently, the commissioner denied the claimant’s motion to preclude defense pursuant to C.G.S. Sec. 31-297(b)1 and dismissed claimant’s claim for compensation benefits.

The pertinent facts are as follows. The claimant originally sustained injuries to her knee, neck, elbow and head. These injuries occurred on June 27, 1990. The claimant and John Marlow, the owner of the Finish Line Cafe, both testified that the claimant is an employee of the Cafe. (Oct. 31, 1991 Transcript of Formal Hearing p. 22 and June 14, 1991 Transcript of Formal Hearing p. 26 respectively.) On the night of June 27, 1990 , claimant alleges that she was at the cafe to perform her duties of closing up and stocking the coolers (Oct. 31, 1991 Transcript of Formal Hearing p. 24). Marlow testified that a fight ensued between the claimant and a patron when claimant tried to get the patron to leave because the bar was closing. (June 14, 1991 Transcript of Formal Hearing p. 32.) However, another patron testified that the fight was between Marlow and the claimant. (Oct. 31, 1991 Transcript of Formal Hearing p. 6.) Additionally, the claimant testified that she fought with Marlow because she was angry that he let “Heidi”, another patron, in the cafe when the claimant had previously barred her from the premises. (Oct. 31, 1991 Transcript of Formal Hearing pp. 24-25.)

The trooper who wrote the report for the incident testified that the claimant stated that she was a patron on the night of June 27, 1990. (June 14, 1991 Transcript of Formal Hearing p. 5.) Because the claimant failed to produce any documentary evidence of her employment at the cafe (see Finding #3) and because of the inconsistent testimony, the trial commissioner concluded that there was no employer-employee relationship. (Finding #22). Hence, the commissioner denied the claimant’s motion to preclude. Castro v. Viera, 207 Conn. 420, 433 (1988) The conclusions drawn by the commissioner from the facts found must stand unless they are without support in the evidence, result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In this case, the commissioner denied the claimant’s Motion to Preclude Defense based on his finding that there was no employer-employee relationship. As the trier found that there was no employer/employee relationship and there was evidence supporting his conclusion, the instant matter must be dismissed.

We note that in addition to the evidence proffered before the trier and referred to, in part above, the respondents on September 16, 1993 filed a Motion to Submit Additional Evidence. That Motion to Submit Additional Evidence sought to proffer copies of documents stemming from a third party action filed in Superior Court and was considered by this tribunal after oral argument on the merits was heard September 25, 1992.2 The respondents’ Motion to Submit Additional Evidence is granted.

Thus, as there was evidence before the trier which supports his conclusion that there was no employer/employee relationship the instant appeal is dismissed.

We, therefore, affirm the February 27, 1992 Ruling on Claimant’s Motion to Preclude Defense and Finding and Dismissal.

Commissioners Frank J . Verrilli and James J. Metro concur.

1 (b) Except as provided in subsection (c) of this section, whenever liability to pay compensation is contested by the employer, he shall file with the compensation commission, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific ground on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability, provided the employer shall not be conclusively presumed to have accepted compensability when the written notice of claim has not been properly served in accordance with section 31-321 or when the notice of claim fails to include a warning that the employer shall be precluded from contesting liability unless a notice contesting liability is filed within the time period set forth in this section. BACK TO TEXT

2 We should note that a Stay for Appellate Proceedings for a period of thirty days was filed by the respondents August 13, 1993 and granted in the Chairman’s August 24, 1993 Order Re: Motion for Stay of Appellate Proceedings. BACK TO TEXT