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Vargas v. Filo Sedillo & Francine Shay Sedillo

CASE NO. 5526 CRB-4-10-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 28, 2010

MARIA VARGAS

CLAIMANT-APPELLANT

v.

FILO SEDILLO & FRANCINE SHAY SEDILLO

EMPLOYER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant appeared without legal representation.

The respondent-employer was represented by Brian Farrell, Esq., Law Offices of Brian Farrell, 555 Long Wharf Drive, New Haven, CT 06511.

The Second Injury Fund was represented by Francis Vignati, Jr., Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06106.

This Petition for Review from the January 11, 2010 Finding and Dismissal of the Commissioner acting for the Fourth District was heard June 25, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from a Finding and Dismissal finding that the Commission lacked jurisdiction over her injury. The claimant was injured while working as a household employee. The trial commissioner found that based on the evidence he found credible, the claimant worked fewer than 26 hours per week and pursuant to § 31-275(9)(B)(iv) C.G.S. the claimant was not an “employee” as defined by statute. The claimant has appealed challenging this conclusion. We find that this was a factual determination by the trial commissioner and as it was based on evidence he found probative, we cannot overturn this determination. In addition, we find that the claimant’s appeal was filed late and therefore, pursuant to statute we lack jurisdiction over this appeal.

The trial commissioner found the following facts which are pertinent to our review. The claimant testified she was hired to baby-sit a one-year-old child, the daughter of the respondents Filo and Francine Shay Sedillo. She learned of the job from an English language advertisement in the Connecticut Post. She testified she started working on a full time basis in March or April of 2007 and was paid $15/per hour. She said she originally used her sister’s car to travel from her residence in Bridgeport to the respondents’ home in Westport; but later she used the train to commute and was picked up at the station by Mr. or Mrs. Sedillo. She testified that she had a flexible work schedule that could go from 10 a.m. to 5 p.m., or 2 p.m. to 10 p.m., and on Saturdays she would baby-sit and clean the house, working 42 hours per week. She testified that she recorded the hours she worked in a notebook and at the end of the week multiplied by 15 to calculate her paycheck. She usually worked seven hours per day.

The claimant was injured on July 13, 2007. She testified she tripped over a stroller and sustained a fracture of her left ankle with posterior fracture dislocations. She testified that Mrs. Sedillo brought her paycheck to her at the hospital on July 14, 2007. She said she had had two operations on her leg since the injury and had not returned to work. The claimant’s attorney said the respondents had paid about $10,000 of medical bills through homeowner’s insurance coverage but some bills had yet to be paId.

Mrs. Sedillo testified at the hearing. She testified that she now lives in Australia but returned to Connecticut to attend the hearing. She said that it was not possible for the claimant to start working for her at her Westport residence during March and April 2007, saying she had not left an apartment in Florida prior to April 25, 2007. Mrs. Sedillo said she moved to Westport as her daughter was starting school at the Westport Montessori School. She further testified she originally hired a woman named Lauren to do this work, but she had not worked out and she interviewed other people who had responded to her newspaper ad, eventually hiring the claimant. Mrs. Sedillo said she recorded the claimant’s hours in a blue notebook kept in her laundry room. This was presented as Respondent’s Exhibit 3. She said she never employed the claimant on Saturday as a different person, Ruth Castrillo, would watch the baby that day. Mrs. Sedillo said the claimant never worked on Monday and never cleaned the house. She also testified the claimant never worked until 10 p.m. as that would cause the claimant to have to take a bus and walk home.

Ms. Castrillo testified that she had been the regular babysitter for Mrs. Sedillo on Saturdays during May, June and July 2007 and she was not aware of anyone else babysitting those Saturdays. She said she had never met the claimant.

The claimant testified that the blue notebook was not the notebook in which she wrote her hours down. She said they were written down in a green notebook but she did not know where this book was now.

Based on those subordinate facts the trial commissioner in a Finding and Dismissal dated January 11, 2010 determined that the claimant was not credible while Mrs. Sedillo and Ms. Castrillo were credible and persuasive. While he determined the claimant was injured while working for Mr. and Mrs. Sedillo, he concluded the claimant worked less than 26 hours per week. Therefore, pursuant to statute (§ 31-275(9)(B)(iv) C.G.S.) the commission had no jurisdiction since the claimant did not fall within the statutory definition of “employee.”

The claimant filed a petition for review on February 3, 2010 and her Reasons for Appeal on February 16, 2010. She did not file a Motion to Correct the Finding and Dismissal. The respondents have argued in their brief that the appeal is procedurally deficient as a result of having been filed too late. As this argument goes to the jurisdiction of this board to hear the appeal, we must address this issue prior to considering the merits of the claimant’s case.

The respondents argue that the appeal had to be filed within twenty days of the issuance of the Finding and Dismissal. They believe the final day to file the appeal would have been Monday, February 1, 2010. They cite Ellis v. State/Department of Developmental Services-West Region (STS), 5242 CRB-5-07-7 (July 8, 2008) for the proposition that § 31-301(a) C.G.S. requires an appeal to be filed within the statutory timeline in order to provide this panel with jurisdiction to consider the appeal.1

We considered a very similar situation in Byczajka v. Stamford, 5023 CRB-7-05-11 (March 26, 2008). In that case we pointed out that the statutory time period to commence an appeal commences “on the day on which the party wanting to appeal is sent meaningful notice of the decision” citing Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999). A party may be able to show that they were deprived of an opportunity to file a timely appeal due to failure of notice. The claimant argued before this tribunal she had late notice of the decision, but offered no documentation or witnesses substantiating this claim. As we are not persuaded the claimant was deprived of timely notice of the trial commissioner’s decision, we conclude that even though she chose to proceed as an unrepresented party, she had sufficient time to file her appeal within the statutory deadline and failed to do so. We are obligated by precedent to dismiss this appeal.

Even were we to have considered the merits of this matter, we would have been bound to affirm the trial commissioner’s decision. While the claimant argues that her attorney failed to present sufficient evidence supportive of her claim, she did not file a Motion to Correct to challenge the factual findings of the trial commissioner or a Motion to Admit Additional Evidence. As a result, we are bound by the facts found by the trial commissioner and would be limited to a determination as to whether these facts were supported by sufficient evidence and whether the trial commissioner properly applied the law. Stevens v. Raymark Industries, Inc., et al, 5215 CRB-4-07-4 (March 26, 2008).

The trial commissioner believed the testimony of Mrs. Sedillo and Ms. Castrillo and did not believe the testimony of the claimant. We are not in a position as an appellate panel to revisit questions as to witness credibility. Burton v. Mottolese, 267 Conn. 1, 40 (2003). The burden was on the claimant to establish that she was an “employee” within the scope of Chapter 568; Castro v. Viera, 207 Conn. 420, 426 (1988). When a claimant fails to establish this jurisdictional fact the trial commissioner must dismiss the claim. Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010). The claimant’s argument on appeal essentially goes to the weight of the evidence, and cannot be overturned by an appellate panel. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The law in Connecticut is clear: a household worker must work at least 26 hours per week to be considered an “employee” within the scope of § 31-275(9)(B)(iv) C.G.S. We may not allow our humanitarian concerns to overcome the clear limitations of coverage delineated by the General Assembly. See Muniz v. Allied Community Resources, Inc., 5025 CRB-5-05-11 (November 1, 2006), aff’d, 108 Conn. App. 581 (2008), cert denied, 289 Conn. 927 (2008). “Because of the statutory nature of our workers’ compensation system, policy determinations as to what injuries are compensable and what jurisdictional limitations apply thereto are for the legislature, not the judiciary or the board, to make.” Stickney v. Sunlight Construction, Inc., 248 Conn. 754, 761 (1999). Id. As the claimant failed to prove she worked 26 hours per week for the Sedillos, the Commission had no jurisdiction over her injury.

The Finding and Dismissal is affirmed and this appeal is dismissed.

Commissioners Nancy E. Salerno and Randy L. Cohen concur in this opinion.

1 We understand that Ms. Vargas is pursuing this appeal as an unrepresented party. As we explained in Claros v. Keystone Pipeline Services, Inc., 5399 CRB-1-08-11 (October 28, 2009) “[w]hile we acknowledge the difficulties pro se claimants may have in advancing an appellate argument, and generally extend considerable leeway to such litigants, there must still be a reasonable effort to comply with the rules to enable this panel to take action.” We do not believe that absent a compelling justification by the claimant we are in a position to waive the statutory deadline for commencing an appeal. BACK TO TEXT

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