State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Reeve v. Eleven Ives Street, LLC

CASE NO. 5146 CRB-7-06-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 5, 2007

COTY L. REEVE

CLAIMANT-APPELLANT

v.

ELEVEN IVES STREET, LLC

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by John J. Morgan, Esq., Barr & Lacava, 22 Fifth Street, Stamford, CT 06905.

The respondent-employer did not file a brief or appear at oral argument.

The Second Injury Fund was represented by Lawrence G. Widem, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review1 from the October 5, 2006 Finding and Dismissal of the Commissioner acting for the Seventh District was heard April 27, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. A single issue is the focus of this appeal: was the claimant an employee of the respondent Eleven Ives Street, LLC when he was allegedly injured on the evening of September 10, 2004? Our precedent makes clear it is the claimant’s burden to establish the jurisdictional fact of an employer-employee relationship, “[t]he burden rested on the plaintiff to prove that he was an employee. Morganelli v. Derby, 105 Conn. 545, 551” Bourgeois v. Cacciapuoti, 138 Conn. 317, 321 (1951). The trial commissioner concluded based on the evidence presented that the claimant failed to prove he was an employee at the time of the injury. While the claimant has appealed, we conclude, since this is a factual determination for the trial commissioner to resolve, that his decision must be upheld on appeal.

The trial commissioner was presented with the following evidence. There is no dispute that the claimant suffered a knee injury on or prior to September 10, 2004. The claimant asserts that this occurred as a result of an altercation at a Danbury nightclub owned by the respondent Eleven Ives Street, LLC. The claimant, who presently resides in Florida, asserted at his deposition that he was working there as a bouncer that evening and intervened to break up a physical dispute between a male and female patron at the bar. The trial commissioner credited his statement he was kicked in the knee by the male patron involved in the altercation and was brought to Danbury Hospital immediately thereafter, where he was diagnosed with a torn ACL. Findings, ¶¶ 3-5. The dispute centers on whether the claimant was working for the respondent when he was injured. The claimant maintains that he was working that evening at the nightclub and had been employed in a variety of capacities by the venue for over two years. An investigator for the respondent Second Injury Fund located the bar’s manager, Brian Marshall, who denied employing the claimant.2 Mr. Marshall told Bertram Martus, the Fund’s investigator, that the claimant was a patron at the bar that evening and had intervened in the fracas on his own initiative. Findings, ¶ 7. Mr. Martus was the sole witness who testified at the February 28, 2006 formal hearing. The record was held open to permit the claimant to testify at a deposition held in Florida, and the record closed on June 23, 2006.

In his Finding and Dismissal dated October 5, 2006 the trial commissioner concluded that “[t]he fact pattern and the testimony of Brian Marshall are more persuasive than the deposition testimony of the Claimant,” Findings, ¶ A and, “Claimant has failed to establish by a fair preponderance of the evidence that he was an employee of First Respondent on September 10, 2004.” Findings, ¶ B. The claimant filed a Motion to Correct and a Motion to Submit Additional Evidence. The commissioner denied these motions and the claimant has pursued this appeal.

In reviewing this appeal, we believe the claimant is proceeding from a fundamental misunderstanding of his burden before the Commission. He focuses on what he believes to be the trial commissioner’s reliance on allegedly unreliable hearsay evidence concerning the employer’s position and the failure of the respondent–employer to attend the hearing or appear at a deposition. As a result, he seeks to have this Board determine that the claimant’s testimony must be credited on the issue of employer-employee relationship. This theory is contrary to both our role as an appellate panel and the binding precedent governing the jurisdiction of this Commission. Our reasoning in Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007) is applicable herein.

In reviewing this instant decision, our standard of review is deferential to the finder of fact. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004).
Once a trial commissioner makes a determination as to whether an injury was sustained in the course of employment, the Compensation Review Board has a limited scope of review over that determination. As we recently held in Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006).
“The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. (Citations omitted; internal quotation marks omitted.) citing Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 665-666 (2006).”

Berube, Id.

The case of Tartaglino v. Department of Correction, 55 Conn. App. 190, 192 (1999) is also instructive,

“The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” Spatafore v. Yale University, 239 Conn. 408, 418, 684 A.2d 1155 (1996). “The appropriate standard applicable to the board when reviewing a decision of a commissioner is well established. [T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts.”

The Appellate Court further held, “[e]ntitlement to workers’ compensation benefits does not attach upon a mere request for payment. There must be an injury that (1) arose out of the plaintiff’s employment and (2) occurred in the course of his employment.” Id., 193. The Appellate Court in Tartaglino further pointed out that a trial commissioner has the power not to credit the testimony of any witness. Id., 195. See also, Gagliardi v. Eagle Group, Inc., 4496 CRB 2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam)(commissioner retains the authority to reject evidence that superficially may appear to be uncontradicted.)

Having established the authority of a trial commissioner to determine the facts and weigh the evidence, and delineating our limited power on appellate review, we now turn to the burden of the claimant in establishing jurisdiction. Our review herein is governed by the precedent in Castro v. Viera, 207 Conn. 420 (1988). The claimant in that case made a similar argument to the claimant in this present case: that the respondent-employer’s failure to contest the claim should cause the trial commissioner to find jurisdiction. Our Supreme Court ruled to the contrary.

The burden in a workers’ compensation claim rests upon the claimant to prove that he is an “employee” under the act and thus is entitled to invoke the act. Bourgeois v. Cacciapuoti, 138 Conn. 317, 321, 84 A.2d 122 (1951); Morganelli v. Derby, 105 Conn. 545, 551, 135 A. 911 (1927). This relationship is threshold because it is settled law that the “commissioner’s jurisdiction is `confined by the Act and limited by its provisions.’” Gagnon v. United Aircraft Corporation, 159 Conn. 302, 305, 268 A.2d 660 (1970). Long ago, we said that the jurisdiction of the commissioners “is confined by the Act and limited by its provisions. Unless the Act gives the Commissioner the right to take jurisdiction over a claim, it cannot be conferred upon [the commissioner] by the parties either by agreement, waiver or conduct.” Id., 426.

The Supreme Court in Castro rejected the claimant’s argument that a successful Motion to Preclude could establish jurisdiction. Instead, the Supreme Court held, “[t]he burden of adducing evidence to enable the commissioner to conclude that there was subject matter jurisdiction to bring this claim within the act was on the plaintiffs.” Id., 434. “[W]e 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 Ford 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);” Bugryn v. State/Department of Correction, 4888 CRB-8-04-11 (October 24, 2005), aff’d, 97 Conn. App. 324 (2006), cert. denied, 280 Conn. 929 (2006); Bonner v. Liberty Home Care Agency, 4945 CRB-6-05-5 (May 12, 2006).

In this case, we must review the evidence before the trial commissioner to ascertain if it was a reasonable conclusion that the claimant had failed to sustain his burden of proving he was an employee of the respondent-employer. The trial commissioner found the claimant provided no documentation of his employee status, offering as evidence neither an employment contract, a W-2 form, a 1099 form, nor any paychecks. Findings, ¶ 9. The claimant asserts he was paid in cash for each night he worked, but said that he had no paperwork whatsoever from the employer. March 24, 2006 Deposition, p. 25. He also admitted not declaring any income from the nightclub on his tax returns. March 24, 2006 Deposition, p. 30. The claimant testified that he recruited dancers, referred customers and accepted deliveries for the club, but offered no corroboration from any other witness for these claims.3 March 24, 2006 Deposition, pp. 8-10.

Accordingly, we find the subordinate facts supporting Finding, ¶ B were sufficient for the trial commissioner to reasonably conclude that the claimant did not prove he was in fact an employee. The only evidence before the trial commissioner supportive of the requisite jurisdictional fact of employment was the claimant’s uncorroborated deposition testimony. We have upheld a trial commissioner who determined a claimant’s account of being injured was not credible and dismissed the claim, even when the claimant produced corroborating witnesses Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006). We cannot find the trial commissioner’s conclusion on this threshold issue was clearly erroneous.4

We now turn to the claimant’s primary focus of this appeal, the alleged error in Finding, ¶ A based on its reliance on unreliable hearsay testimony concerning the statement of Mr. Marshall. While the trial commissioner’s identification of Mr. Marshall’s unsworn statements to an investigator as “testimony” were inaccurate, we find this at best is harmless error. The trial commissioner’s Finding, ¶ B established he did not believe the claimant proffered a sufficient quantum of evidence to sustain his claim. We believe this situation is akin to Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995) “[W]e conclude that the commissioner’s credibility determination against the claimant is fully supported by the uncontested evidence, including the claimant’s own contradictory evidence. We thus find that the admission of evidence which the claimant on appeal contends was inadmissible hearsay, constituted at most harmless error.”

We also note that the claimant’s counsel did not raise a seasonable objection to the admission of Mr. Martus’s testimony or the admission of his investigative report. Respondent’s Exhibit 1. See February 28, 2006 Transcript, p. 13. Counsel cross examined Mr. Martus at length. February 28, 2006 Transcript, pp. 21-25. As a result, our decision in Paige v. Hartford Insurance Co., 4594 CRB-2-02-12 (January 9, 2004) suggests there has been no error, as we upheld the trial commissioner when “in this case the claimant never raised an objection regarding the hearsay nature of the evidence.” We also believe the ability of counsel to question Mr. Martus comports with the procedural due process concerns addressed in Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974).5 Finally, we conclude that the documentation in Respondent’s Exhibit 1 is consistent with Finding, ¶ A in that the wage records of the employer-respondent did not document wages paid to the claimant.

We conclude the trial commissioner’s determination that Mr. Reeve was not employed by Eleven Ives Street, LLC was a reasonable determination based on the claimant’s lack of probative evidence. Our holding in Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000) is dispositive of this appeal. “If the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.”6 We affirm the Finding and Dismissal and dismiss this appeal.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 We note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 As the respondent Eleven Ives Street, LLC was an uninsured party for Chapter 568; the Second Injury Fund was a necessary party to these proceedings. The respondent-employer Eleven Ives Street, LLC did not appear at the formal hearing to defend their interests and did not file a Form 43 contesting liability. BACK TO TEXT

3 The claimant sought a Motion to Submit Additional Evidence on these matters, which was denied by the trial commissioner. We are not persuaded that the claimant could not have procured such evidence prior to the conclusion of the formal hearing. Accordingly, we deem it untimely pursuant to the precedent in Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 57-58 (2001) and uphold the trial commissioner on this issue. BACK TO TEXT

4 We note that a trial commissioner can find a claimant’s testimony that they were paid in cash sufficiently credible to sustain a finding they acted as an employee. See Slater v. Broderick Macari, 4979 CRB-2-05-7 (June 27, 2006). Such a finding of witness credibility is not within the scope of appellate review, however. BACK TO TEXT

5 Claimant’s focus on challenging hearsay evidence might be of more weight in a Superior Court proceeding, but in proceedings under Chapter 568, “[t]he commissioner is not bound by common law or statutory rules of evidence or procedures. He may make inquiry in the manner best calculated to do so to ascertain the rights of the parties. . . .” Delgaizo v. Veeder-Root, Inc., 133 Conn. 664, 667-668 (1947); Parisi v. Yale University, 89 Conn. App. 716, 723 (2005). See also, § 31-298 C.G.S. which states the commissioner “shall not be bound by the ordinary common law or statutory rules of evidence or procedure. . . . ” BACK TO TEXT

6 The claimant argues it was error for the trial commissioner to reject its Motion to Correct. Since the Motion to Correct essentially sought to interpose the claimant’s conclusions as to the facts presented, we find no error. See Liano v. Department of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT

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