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Tavares v. Monica and Walter Noel

CASE NO. 2010 CRB-7-94-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 8, 1996

JOAQUIN TAVARES

CLAIMANT-APPELLEE

v.

MONICA AND WALTER NOEL

EMPLOYER

UNINSURED

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT

APPEARANCES:

The claimant was represented by Joseph N. Tauber, Esq., 99 Prospect Street, Stamford, CT 06901.

The employer was represented by Peter L. Truebner, Esq., 111 Prospect Street, Stamford, CT 06901.

The Second Injury Fund was represented by Ernie Walker, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120, who did not file a brief or appear at oral argument.

This Petition for Review from the March 17, 1994 Finding and Award of the Commissioner acting for the Seventh District was heard June 23, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the March 17, 1994 Finding and Award of the Commissioner for the Seventh District. In that decision, the trial commissioner concluded that the claimant sustained a compensable injury to his back on May 13, 1992. The employer argues on appeal that (1) the claimant does not have standing because he is an illegal alien; (2) the claimant was not credible regarding his testimony that the injury occurred in the course of his employment; (3) the commissioner improperly included $750.00 per month for room and board in determining the benefit rate; and (4) the commissioner erred in concluding that the employer unreasonably contested the claim.

In the instant case, the trial commissioner found the following relevant facts. The claimant worked for the employer, Monica and Walter Noel, at their residence where his duties included chauffeuring, gardening, and other household duties. The claimant was a native of Brazil and did not have any legal documents, such as a green card, which would enable him to work in the United States. The claimant injured his back on May 13, 1992 while lifting planter boxes at the employer’s residence. Several days following the accident, Monica Noel took the claimant to the emergency room due to his back pain, where he was prescribed muscle relaxants. Subsequently, on May 28, 1992, Monica Noel brought the claimant to Dr. Kavanaugh, who prescribed additional medication and bed rest. In June of 1992, Monica Noel accompanied the claimant to the hospital, and on June 25, 1992 he underwent surgery to repair a herniated disc. Upon discharge from the hospital, the employer allowed the claimant to recuperate at their home for one month, during which time he was provided room and board.

Section 31-275(9)(A)(i) C.G.S. defines an employee as “any person who has entered into or works under any contract of service or apprenticeship with an employer, whether such contract contemplates the performance of duties within or without the state....” The Connecticut Supreme Court “has consistently stated that if the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction.” Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395 (1993) (citations omitted). The legislature specifically chose to include “any person” in the definition, but did not limit it to any “citizen” or any “lawfully employed” person. In the absence of such a legislative provision, this tribunal should not “supply statutory language that the legislature may have chosen to omit.” Id. at 396.

Moreover, we note that other states have held that an employee who is an illegal alien is not barred from receiving workers’ compensation benefits. See Commercial Standard Fire and Marine Co. v. Galindo, 484 S.W.2d 635 (Tex.Civ.App., 1972); Gene’s Harvesting v. Rodriguez, 421 So.2d 701 (Fla.App.1982); see also Villa v. Eastern Wire Products Co., 554 A.2d 644, 646 (R.I. 1989) (trial commissioner’s disapproval of claimant’s illegal entry into this country cannot be the basis for denying workers’ compensation). Similarly, Professor Larson states that “illegal entry into this country does not deprive an alien of his compensation rights.” 1 A. Larson, Workmen’s Compensation Law, § 35.20. We thus affirm the trial commissioner’s determination that the claimant was an employee under the Workers’ Compensation Act.

The employer contends that the claimant’s testimony regarding his injury was contradictory, and thus not credible. Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the commissioner as the trier of fact. We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Where, as here, the commissioner’s determination is based upon the weight and credibility that he has accorded the evidence, we will not disturb such a determination. Dickey v. Harris Graphics, 12 Conn. Workers’ Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994).

The employer further contends that the commissioner improperly included a $750.00 per month allotment for room and board in determining the claimant’s benefit rate. We find no error. The monetary value of room and board which is provided by the employer may be included in the determination of the claimant’s benefit rate. See Cormican v. McMahon 102 Conn. 234 (1925); see also Matey v. Dember, 5 Conn. Workers’ Comp. Rev. Op. 104, 516 CRD-5-86 (June 14, 1988). In the instant case, the claimant was required to live at the employer’s residence during his employment. The commissioner determined that the value of the room and board equaled $750.00 per month. This determination is amply supported by the testimony of a real estate appraiser who estimated that the rental value of a room in the location of the employer’s residence was at least $850.00 per month. (Transcript of 3/4/93 at p. 38). We find no merit to the employer’s argument that the value of room and board should not be included because the renting of a room was not permitted under the town’s zoning regulations.

An award of attorney’s fees due to unreasonable contest of liability is a matter controlled by Sec. 31-300 C.G.S.1 The determination of unreasonableness of contest is ordinarily an issue for the trier of fact. Our review of that determination is limited to an inquiry whether there was an abuse of discretion. Davis v. Dwight Building Co., 2 Conn. Workers’ Comp. Rev. Op. 51, 129 CRD-3-82 (May 29, 1984). However, this tribunal will not render a decision when “through inadvertence or otherwise, the facts have not been sufficiently found to render a just judgment.” Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 3, 936 CRD-6-89-11 (March 19, 1991) (citation omitted).

In the instant case, the basis of the commissioner’s conclusion that the employer unreasonably contested the claim is not clear from the findings. We, therefore, remand this matter to the trial Commissioner to reconsider or articulate this determination. The commissioner should include the specific amount awarded for attorney’s fees pursuant to § 31-300. In addition, the commissioner may consider whether to impose a fine pursuant to § 31-288 for the employer’s failure to carry workers’ compensation insurance.

Accordingly, we remand this matter to the trial commissioner limited to the above issues. In all other respects the trial commissioner’s decision is affirmed.

Commissioners Amado J. Vargas and Michael S. Miles and concur.

1 Sec. 31-300 provides in pertinent part: “In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow a reasonable attorney’s fee.” BACK TO TEXT

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