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Pichardo v. East-West Theatre Productions et al.

CASE NO. 1553 CRB-3-92-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 2, 1994

ANTHONY PICHARDO

CLAIMANT-APPELLANT

v.

EAST-WEST THEATRE PRODUCTIONS

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

AREA COOPERATIVE EDUCATIONAL SERVICES (ACES)

ALLEGED PRINCIPAL EMPLOYER

and

TRAVELERS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Peter A. Kelly, Esq., 385 Orange Street, New Haven, CT 06511.

The respondent East-West Theatre Productions was represented by Sylvia Caminer, 145 Cochise Court, Palm Coast, FL 32137 who neither filed a brief nor appeared before the Compensation Review Board.

The respondent ACES and its insurer were represented by Janine A. D’Angelo, Esq., Law Offices of Christine L. Harrigan, P.O. Box 9802, New Haven, CT 06536-0802.

The respondent Second Injury Fund was represented by Robin L. Wilson, Esq. and Edward F. Osswalt, Esq., Assistant Attorneys General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 4, 1992 Finding and Dismissal of the Commissioner for the Third District was heard September 10, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Donald H. Doyle, Jr. and Angelo L. dos Santos.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review of the Third District Commissioner’s November 4, 1992 Finding and Dismissal. On appeal, the claimant challenges the trial commissioner’s dismissal which was predicated on his finding that the claimant, an aspiring actor, was an independent contractor who engaged in a joint venture to perform a theatrical performance and, therefore, was not an employee of respondent East-West Theater Productions. We affirm the trial commissioner.

Respondent East-West Theatre Productions (East-West) is a Florida corporation owned by Sylvia Caminer. Caminer and the claimant met in Florida, and both had an interest in performing the play “Danny and the Deep Blue Sea.” They made an agreement to put on the play in New Haven, and the claimant came to New Haven for that purpose. The play was to be produced by East-West, and the play’s two actors were the claimant and Lorraine Marshall. The claimant, East-West, and Marshall were to share the box office receipts equally after expenses were deducted.1 The claimant fractured his right wrist on September 14, 1990, when he struck a brick wall during a performance of the play.

“Whether a claimant is an employee is a question of fact. Francis v. Franklin Cafeteria, Inc., 123 Conn. 320 (1937). See also Pisani v. Messore d/b/a Westville Painting, 8 Conn. Workers’ Comp. Rev. Op. 11, 753 CRD-3-88-7 (1989). On such an issue we will not disturb the conclusions of the trial commissioner unless unsupported by evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).” Hart v. National Academy of Hairdressing, 10 Conn. Workers’ Comp. Rev. Op. 10, 10-11, 945 CRD-6-89-11 (1991).

The corrections and additions to the commissioner’s factual findings sought by the claimant involve either facts which are disputed or facts which would not alter the commissioner’s legal conclusion. As such, the claimant’s motion to correct was properly denied. Tscheppe v. H.B. Ives Company, 1386 CRB-3-92-2 (decided November 23, 1993); Hill v. Pitney Bowes, Inc., 8 Conn. Workers’ Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990).

As there was sufficient evidence for the trial commissioner to find and conclude as he did, the commissioner’s decision must stand. Fair v. People’s Savings Bank, supra.

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners Donald H. Doyle, Jr. and Angelo L. dos Santos concur.

1 The trial commissioner also found that the only involvement of respondent Area Cooperative Educational Services (ACES) with the theatrical production was that ACES rented its theater to East-West and was not to share in any of the proceeds from the production. ACES was originally cited into the formal hearing by the Second Injury Fund as a putative principal employer, pursuant to General Statutes Sec. 31-291, should East-West Theatre Productions be found to be an uninsured employer. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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