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Dowling v. Sol V. Slotnik & Diane Reverand

CASE NO. 3062 CRB-4-95-5

CASE NO. 3277 CRB-4-96-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 5, 1997

VICTORIA DOWLING

CLAIMANT-APPELLEE

v.

SOL V. SLOTNIK & DIANE REVERAND

EMPLOYERS

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Nicholas Wocl, Esq., Tooher, Puzzouli & Wocl, 1100 Summer St., Stamford, CT 06905.

The respondent Sol Slotnik appeared pro se at oral argument. The pro se respondent Diane Reverand waived oral argument, and went forth on her brief.

The Second Injury Fund was represented by Kenneth Kennedy, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the April 25, 1995 Bench Ruling and the February 9, 1996 Finding and Award of the Commissioner acting for the Fourth District were heard August 16, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the April 25, 1995 Bench Ruling and the February 9, 1996 Finding and Award of the Commissioner acting for the Fourth District. They contend that the commissioner improperly awarded benefits to the claimant because she was an illegal alien unlawfully employed at the time of her injury. We affirm the trial commissioner’s decision.

This case is a bit unusual procedurally, as the respondents originally filed a petition for review from an oral ruling made by the commissioner at an April 25, 1995 hearing. That ruling, memorialized in the appellate record by two pages from the transcript, simply stated that the commissioner would find that the claimant was entitled to benefits for her compensable injury irrespective of her possible illegal alien status. The respondents attempted to withdraw that appeal as premature on October 13, 1995, the day of their scheduled oral argument, because the issues raised by the respondents would be addressed in the commissioner’s written findings and conclusions, to be issued at a later date. This request was denied, but the board ruled that the case could be rescheduled for oral argument at a later date.

The respondents filed their appellate brief on January 30, 1996. On February 9, 1996, the commissioner issued a Finding and Award ordering the respondents to pay temporary total disability benefits, medical and testimonial expenses, and attorney’s fees for unduly delaying the payment of compensation. He also fined the respondents $10,000 for failing to have workers’ compensation insurance. Included in the commissioner’s decision was a rejection of the respondents’ “illegal alien” defense. The respondents petitioned for review from that decision1 as well, although they did not file separate reasons for appeal and a separate brief. We thus have only the respondents’ initial appellate brief to consider in support of their appeals.2

Recently, this board decided that the definition of “employee” in § 31-275(9) C.G.S. includes “any person,” and is not limited to citizens or lawfully employed people. Tavares v. Noel, 2010 CRB-7-94-3 (decided March 8, 1996). In Tavares, a Brazilian native who had been injured while working as a gardener at his employer’s residence was allowed to claim workers’ compensation even though he possessed no documentation entitling him to work in this country. Noting the breadth of the statutory definition, we followed the lead of other states’ decisions and Professor Larson’s commentary in allowing the claimant to maintain his action.

Here, the claimant was employed by the respondents as a live-in housekeeper and nanny for their two sons. The oral agreement between the parties provided that the claimant receive free room and board for a five day work week, use of a motor vehicle when available, an allowance toward a private phone, and a gross weekly salary of $400. While walking the family dog en route to the respondents’ mailbox on February 28, 1994, the claimant slipped on their icy driveway and fell, injuring her right arm and hand. The commissioner found her injuries compensable, and set her compensation rate at $325.35 per week. He ordered that the respondents pay the claimant temporary total disability payments from June 24, 1994 through August 30, 1995 at the above rate, along with interest at 12 percent per year. He also ordered the payment of temporary total disability benefits beyond August 31, 1995, subject to the production of medical documentation confirming the claimant’s disability.

We see no basis in these facts to distinguish this case from Tavares, nor do we accept the respondents’ invitation to reconsider our holding in that case. The fact that the United States government has criminalized the employment of illegal aliens in the Immigration Reform and Control Act, explicitly preempting state and local laws imposing civil or criminal sanctions on those hiring illegal aliens in the process, does not implicate the issue of workers’ compensation benefits. Workers’ compensation is not a punishment levied against individuals because they have hired illegal aliens; it is the product of remedial legislation that compromises an individual’s right to a common law tort action for work-related injuries in exchange for relatively quick and certain compensation. Green v. General Dynamics Corporation/Electric Boat Division, 44 Conn. App. 112, 122 (1996) (Dupont, J., dissenting). There is no relationship between the policies advanced by our Act and those behind the federal IRCA, and the latter does not preclude application of the former.

The claimant’s inability to obtain other employment in the United States due to her foreign citizenship and lack of a valid work permit would certainly restrict her from obtaining other employment. However, we do not believe that this affects the due process rights of the respondents. If the claimant is totally disabled, as the trial commissioner found her to be, she is by definition unable to work in any capacity based on her medical condition. See § 31-307 C.G.S. Thus, whether she is an illegal alien or not, she simply cannot work. As the trial commissioner anticipated in his award, however, the claimant may indeed be medically able to work again sometime in the future. At that time, she would no longer be entitled to total disability benefits under § 31-307. A claimant who is physically able to work is not totally disabled, and the respondents would not be expected to continue paying her total disability benefits. (Any potential entitlement to partial disability benefits is a completely separate issue that we decline to address here.)

The claimant’s exaggeration of her past work experience on her job application might have given her employers a reason to dismiss her. It has no bearing, however, on either the existence of an employment relationship in this case, or the compensability of her injury. The issue here is not whether the claimant breached an oral employment contract; it is whether she was working for the respondents when she was injured. It is clear that she was in this case. It is also clear that her falsification of information in her application had nothing to do with her slipping on ice in the driveway and being injured. We will not allow the respondents to avoid liability on that ground.

The simple fact is, an employer would be placed in a highly advantageous position if it were able to avoid workers’ compensation liability simply by hiring illegal aliens and then raising their citizenship status as a defense whenever an injury occurred. Although this Commission certainly abhors violations of American immigration laws, our primary concern is to ensure that employees are compensated for injuries they suffer at work. When forced to address both of these concerns, we believe that the proper approach for this Commission is to provide protection for workers who happen to be illegal aliens. It is not our duty to punish them; rather, that duty falls upon a different branch of our government.

The respondent Sol Slotnik, who appeared on his own behalf at oral argument, raised an objection there to the $10,000 fine levied by the trial commissioner against the respondents for their failure to carry workers’ compensation insurance. He stated that he had been unaware of the law requiring such insurance until after the claimant made her claim, and that he obtained the proper insurance for his employees once he found out about it. This ground for appeal would ordinarily be dismissed by this board without discussion, as the respondents first raised it at oral argument. See Mancini v. A. Laugeni & Son, Inc., 9 Conn. Workers’ Comp. Rev. Op. 45, 739 CRD-5-88-6 (Feb. 4, 1991).

We note, however, that the employers’ unawareness of the law requiring workers’ compensation insurance was not a valid reason for their failure to obtain it, and the $10,000 fine was permissible under § 31-288(c) C.G.S. See Proto v. Kenneth Grant d/b/a Kenney G’s Irish Pub, 3030 CRB-8-95-3 (decided Nov. 26, 1996) (ignorance of law requiring insurance by small employer did not prevent imposition of fine under § 31-288(c)). Slotnik admitted at oral argument that he did not have the required insurance, and he also admitted it to the trial commissioner. We see no ground to reverse the commissioner’s imposition of the $10,000 fine against the employer.

The trial commissioner’s decision is affirmed in all respects, and the respondents are ordered to comply with the commissioner’s order for payment of benefits and interest. Additionally, the respondents are required by § 31-301c(b) to pay interest on any portion of the award that remained unpaid during the pendency of this appeal.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 We note that the appeal, which the Commission received on February 20, 1996, was timely filed, as February 19, 1996 was the observance of Washington’s Birthday, a state legal holiday. See § 1-4 C.G.S.; Diana v. C.H. Nickerson & Co., 6 Conn. Workers’ Comp. Rev. Op. 123, 124-25, 597 CRD-5-87 (1989). BACK TO TEXT

2 The claimant has, in fact, filed two motions to dismiss the respondents’ appeals. The latter, which is directed at both appeals, simply states that the respondents have failed to prosecute with due diligence. The former, directed only at the first appeal, specifically notes that the respondents failed to timely file their brief, and also points out that the appeal is premature. Having been filed over a month after the appellants’ brief was actually received, the former motion is not timely under Practice Book § 4056; further, this board had already declined to allow withdrawal of the appeal. As for the latter motion to dismiss, the respondents indeed failed to file any documents in support of their second petition for review, including a Motion to Correct. Although the respondents have consequently lost their right to challenge any of the findings of the commissioner in his decision, see Cooper v. Sisters of Mercy, 3218 CRB-6-95-11 (decided Dec. 10, 1996), we recognize the somewhat unusual procedural background of this appeal. Therefore, we will hold the respondents’ brief applicable to both appeals, as the core issue is still present. The motions to dismiss are hereby denied. BACK TO TEXT

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