CASE NO. 4888 CRB-8-04-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 24, 2005
PRISCILLA BUGRYN (Dependent Widow of)
SERENA BUGRYN (Dependent Daughter of)
DENNIS BUGRYN (Deceased)
STATE OF CONNECTICUT DEPARTMENT OF CORRECTION
GAB ROBINS NORTH AMERICA
The claimant was represented by Ross Lessack, Esq., Dodd, Lessack, Ranando & Dalton, LLC, Westgate Corporate Park, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.
The respondent was represented by Sarah Posner, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the November 4, 2004 Finding & Dismissal of the Commissioner acting for the Eighth District was heard May 13, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and Donald H. Doyle, Jr.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimants appeal from the November 4, 2004 Finding and Dismissal of the Commissioner acting for the Eighth District. In that Finding and Dismissal the commissioner dismissed the claimants’ request for dependents benefits pursuant to § 31-306.
The claimants are the dependent spouse and daughter of the decedent, Dennis Bugryn. The claimants brought this claim seeking dependents benefits pursuant to § 31-306 as a result of the decedent’s death October 1, 1997. At the time of his death the decedent was in the process of going through the application process to secure a position as a correction officer for the State of Connecticut.
The employment application process required successful completion of; 1) a written test, 2) an oral interview, 3) a physical fitness test, 4) a background investigation, 5) a medical examination and 6) drug screening. Employment candidates were required to successfully complete all facets of the application process before they would be deemed eligible to attend the Department of Correction academy to undergo training as a correction officer. When sufficient vacancies occurred at the Department of Correction, training classes were filled from the list of candidates who successfully completed the application process.
In the instant matter, the decedent took a written exam on March 4, 1996 and completed his oral interview on June 27, 1996. On August 25, 1997 he was notified that he was scheduled to take the physical fitness test on October 1, 1997. On October 1, 1997 he executed a hold harmless agreement. On that date he completed his physical fitness test and after completing the 1.5 mile run he suffered a heart attack and was transported to Bradley Memorial Hospital where he died the same day.
The physical fitness portion of the application process was administered at the Cheshire Training Academy. That facility is on state property and supervised by state employees. Claimants argue that the factual circumstances in this matter prove the decedent was an employee of the State of Connecticut as defined by C.G.S. § 31-275 and applicable case law and are entitled to Chapter 568 benefits. The trial commissioner was not so persuaded and dismissed the claim. The claimants filed this appeal.
The claimants argue the commissioner erred in concluding the decedent was not an employee at the time of his death. In support of its contention the claimant cites § 31-275-9(A)(i) and applicable case law. Sec. 31-275(A)(i) defines an employee, in pertinent part, as any person who “has entered into or works under any contract of service or apprenticeship with an employer, whether the contract contemplated the performance of duties within or without the state.” The claimants note the putative employer in this case had total control over the physical fitness test. The decedent was directed when and where to appear for the test. Claimants contend that the physical fitness test was designed to test decedent’s physical skills and abilities necessary to be a correction officer and therefore, at the time of his death the claimant was performing the duties of a correction officer.
In support of their appeal the claimants refer us to Lemelin v. New Britain General Hospital, 3978 CRB-6-99-2 (February 1, 2000). The claimants argue that Lemelin supports the proposition that the Act does not require actual employment in order to confer benefits under the Connecticut Workers’ Compensation Act. In Lemelin, the claimant was found to have suffered a compensable injury due to a reaction from a Hepatitis B vaccination. The vaccination was given upon the recommendation of the employer’s medical staff while claimant was undergoing her post employment offer physical examination. In Lemelin, the claimant had an offer of employment and a letter from the employer providing an actual employment starting date. We believe these facts distinguish the Lemelin matter from the instant matter.
Additionally, the claimants refer us to Netto v. Derby, 4535 CRB-4-02-6 (July 2, 2003). In Netto, the claimant was injured while attending the police academy training for a position as a supernumerary police officer. Claimant was not hired by the City of Derby while he was undergoing his training and was not paid any wages. The CRB found that he was an employee entitled to workers’ compensation benefits. Crucial to the conclusion that the claimant should be considered as an employee to whom the Workers’ Compensation Act applied, was a letter from the police chief indicating that the claimant had been offered a part-time supernumerary job and upon completing his training would be hired as a supernumerary police officer. Again, we find the facts in Netto are dissimilar from the instant matter.
Finally, we note that the determination of whether an employment relationship existed at the time of the injury is largely a factual question to be resolved by the commissioner. Merlin v. Labor Force of America, Inc., 3920 CRB-4-98-10 (December 22, 1999), aff’d, 62 Conn. App. 906 (2001)(per curiam), cert. denied, 256 Conn. 922 (2001). As such, we will not disturb the conclusion reached by the commissioner unless contrary to law, without evidence or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). The factual findings and conclusion of the commissioner stand.
We therefore affirm the November 4, 2004 Finding and Dismissal of the Commissioner acting for the Eighth District.
Commissioners Michelle D. Truglia and Donald H. Doyle, Jr. concur.