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Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc.

CASE NO. 5429 CRB-5-09-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 22, 2010

ALAN BROCKENBERRY

CLAIMANT-APPELLANT

v.

THOMAS DEEGAN d/b/a TOM’s SCRAP METAL, INC.

EMPLOYER

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Jack Senich, Esq., The Senich Law Firm, LLC, 390 Middlebury Road, Middlebury, CT 06762.

The respondent-employer was pro se and did not file a brief or attend oral argument.

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

This Petition for Review from the February 2, 2009 Finding & Dismissal of the Commissioner acting for the Fifth District was heard August 28, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals from the dismissal of his claim. The trial commissioner concluded, after hearing testimony as to the nature of the claimant’s business relationship with the respondent, that the claimant failed to prove the presence of an employer-employee relationship. Since this determination was based largely on the trial commissioner’s evaluation of the claimant’s credibility, we affirm this decision and dismiss this appeal.

The circumstances of this case are somewhat atypical. The parties agree that on June 27, 2006 the claimant injured his thumb while removing scrap metal from railroad yards in the south end of Waterbury. The claimant and the respondent offered differing accounts as to the nature of the business relationship between the parties engaged in this endeavor. In addition, the trial commissioner concluded there was a question as to the propriety of the entire undertaking.

The claimant testified that he was hired by the respondent, Thomas Deegan, to remove scrap metal. He had met Mr. Deegan through Narcotics Anonymous and at the time of the incident the claimant was Mr. Deegan’s roommate. The claimant testified that Mr. Deegan had approached him about working with him in the scrap metal business, and had hired him earlier on the day he had been injured. The claimant testified that he was to be paid by the hour. Mr. Deegan chose the location where the scrap metal was to be removed and the claimant testified Mr. Deegan had driven him to that location. Once there, the claimant testified Mr. Deegan directed him to remove brush, and the injury occurred while this was being done. The claimant said he was provided a sickle and saw by Mr. Deegan in order to cut the brush. The claimant testified that a “foreman” was on the job at the time, a gentleman named “Angel,” who transported the claimant to the hospital in Mr. Deegan’s car following his hand injury.

Mr. Deegan denied being the claimant’s employer. He stated that while the claimant was in possession of a business card entitled “Tom’s Scrap Metal;” this business was bankrupt at the time of the incident.1 Mr. Deegan said the nature of the business relationship was that a number of individuals intended to remove scrap metal, transport it in his car, and resell the metal. Once the metal was sold the proceeds were to be distributed between the members of the group. Mr. Deegan denied promising to pay the claimant an hourly wage. He also denied providing any tools to the claimant and denied directing the claimant on how to do his work. He did acknowledge a co-worker, Sam Martino, drove the claimant to the hospital after his injury. In response to an inquiry from the trial commissioner, Mr. Deegan admitted the group did not have permission from anyone to remove the scrap metal from the site, but were “hustling” what they believed to be abandoned property. As Mr. Deegan did not have workers’ compensation insurance, the Second Injury Fund appeared at the formal hearing and presented its own evidence contesting the claimant’s bid for benefits. This included documentation from the City of Waterbury and the South End Revitalization Corporation that they had not granted permission to Mr. Deegan to remove anything from the property they owned in the south end.

Based on this testimony, the trial commissioner concluded that while the claimant “testified at length about his relationship with the respondent” that “this testimony is not accepted.” The trial commissioner found the claimant’s testimony “less than credible.”

The respondent “vehemently denies the claimant was its employee” and the trial commissioner accepted the respondent’s position. Concluding the relationship between the parties “does not even come close to an employee-employer relationship” the trial commissioner dismissed the claim.

The claimant filed a Motion to Correct. The motion sought to add findings supportive of the existence of an employer-employee relationship, as well as adding findings consistent with finding Thomas Deegan’s testimony not credible. The trial commissioner denied the motion in its entirety and the claimant has pursued this appeal.

The claimant’s argument on appeal is that the trial commissioner was obligated to find specific material facts “addressing the issue whether or not there is an employer-employee relationship.” Claimant’s Brief, p. 8. We reject this position for two reasons. First, it misstates the obligation on the part of a claimant to prove that this Commission has jurisdiction over the injury. Secondly, since the claimant’s Motion to Correct was denied, the trial commissioner specifically decided not to find the requisite facts that would establish jurisdiction.

We restated the legal obligation of a claimant to prove facts supportive of jurisdiction in our decision in Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007). We believe our opinion in Reeve is directly on point. Citing Castro v. Viera, 207 Conn. 420 (1988) we pointed out that the claimant has the burden of persuasion on this issue.

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.”

Castro, 426.

In Reeve the claimant testified that he had been injured in the course of employment, and argued that since the employer had not appeared in the proceedings, he should receive benefits. We held however, that since the trial commissioner did not find the claimant credible, the claimant failed on the “threshold issue” before the tribunal.

The trial commissioner in the present action specifically found the claimant “less than credible.”2 This is dispositive of the appeal. We cannot revisit a trial commissioner’s determination of credibility when witnesses present testimony for his consideration. Burton v. Mottolese, 267 Conn. 1, 40 (2003). While the claimant went to great lengths to prove that the respondent was not credible, this was not the critical issue in this case. The appellant in Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007) pursued this strategy, and we held that when two parties offer mutually inconsistent testimony, it is the commissioner’s prerogative to find one narrative credible. Even if the claimant proved the respondent was less than credible, this would not have established the existence of an employer-employee relationship. As we held in Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB 6-07-7 (July 22, 2008), when neither party before the tribunal is credible the claim must be dismissed.

Two other issues should be addressed at this time. We believe that it is appropriate to remind the claimant, and indeed, practitioners in this field of the law, as to the import of having a Motion to Correct denied. When a party files a Motion to Correct this is an effort to bring factual evidence to the trial commissioner’s attention in an effort to obtain a Finding that is consistent with such facts. When a trial commissioner denies such a motion, we may properly infer that the commissioner did not find the evidence submitted probative or credible. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). On appeal, our inquiry is limited to ascertaining if this decision was arbitrary or capricious. Id.3 The leading case on this point is Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003).

We also note that virtually all of the “undisputed facts” cited by the respondent in their Motion to Correct were derived from testimony, which the trier was not required to believe even if those statements were uncontradicted or otherwise corroborated. Duddy, supra, Pallotto v. Blakeslee Press, Inc., 3651 CRB-3-97-7 (July 17, 1998). The trier’s denial of those corrections implies that he was not swayed by this testimony, and we cannot invade his sphere of authority by reappraising the evidence and drawing a contrary inference on appeal. Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (Jan. 20, 2000).

Since we may properly infer the trial commissioner rejected the claimant’s evidence, we must apply the precedent in Beedle to affirm the commissioner’s decision. We must address the other issue raised on appeal. The claimant argues that the trial commissioner’s conclusion that the claimant and respondent were engaged in an illegal enterprise lacked subordinate facts. In the claimant’s opinion, this constitutes reversible error. We disagree.

We note that the determination of this issue was not central to the jurisdictional dispute. The claimant had the jurisdictional obligation to establish he was Mr. Deegan’s employee; notwithstanding the question as to whether their business endeavors were within the scope of the law or not. He failed on this threshold question, therefore the commissioner’s conclusions as to whether the scrap metal acquisition was legal or not were immaterial to the outcome of this case. “Once a determination is reached that we lack subject matter jurisdiction no further inquiry is warranted.” Mankus v. Robert Mankus, 4958 CRB-1-05-6 (August 22, 2006), aff’d, 107 Conn. 585 (2008), cert. denied, 288 Conn. 904 (2008). To the extent the Finding & Dismissal referenced these issues, as well as referring to the lifestyle challenges of the parties to this dispute, such a discussion was at most harmless error. See Reeve, supra, citing Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995) (admission of challenged evidence immaterial when commissioner found claimant not to be credible).

We cannot, as an appellate panel, revisit the credibility determinations of the trial commissioner. We find no error, and herein affirm the Finding and Dismissal. The appeal is dismissed.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 Conflicting testimony was later presented challenging this statement, as the firm had not formally filed for dissolution as of the date of the accident. July 29, 2008 Transcript, p. 64. We do not find the legal status of Mr. Deegan’s business materially dispositive to the outcome of this case, however. BACK TO TEXT

2 The claimant testified that he had agreed to work a standard working week at a set hourly rate of pay, yet sustained his injury on the first day of work. While we note that uncorroborated testimony has been sufficient in some cases to establish an employer-employee relationship, Slater v. Broderick Macari, 4979 CRB-2-05-7 (June 27, 2006) and Ojeda v. Forty-Five Pool Services, 5387 CRB-4-08-10 (September 8, 2009) in those cases the finder of fact found the claimant to be credible in their narrative of working for the respondent over an extended period of time. BACK TO TEXT

3 An example of a case where we decided on appeal a Motion to Correct should have been granted was Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007). In Berry we concluded the facts in question were material and undisputed. In addition, we found the trial commissioner had misinterpreted the relevant law governing the issue in dispute; therefore the decision rose to the level of being “clearly erroneous.” Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 666 (2006). In the present case, we find the trial commissioner properly applied the precedent in Reeve, supra, governing the claimant’s standard of proof to establish an employer-employee relationship and could properly find the claimant’s statements lacked credibility. BACK TO TEXT

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Page last revised: February 11, 2010

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