State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Gamez-Reyes v. Donald F. Biagi, Jr.

CASE NO. 5552 CRB-7-10-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 3, 2011

VIDAL GAMEZ-REYES

CLAIMANT-APPELLEE

v.

DONALD F. BIAGI, JR.

EMPLOYER

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Steven D. Ecker, Esq., Law Offices of Cowdery, Ecker & Murphy, LLC, 280 Trumbull Street, 22nd Floor, Hartford, CT 06103-3599 and Eric Smith, Esq., Stratton Faxon Law Firm, 59 Elm Street, New Haven, CT 06510.

The respondent-appellant was represented by John J. Morgan, Esq., Barr & Morgan, 22 Fifth Street, Stamford, CT 06905.

The Second Injury Fund was represented by Catherine M. Rawson, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120, who did not participate in the appeal, file a brief or appear at oral argument.

This Petition for Review from the April 21, 2010 Finding and Award of the Commissioner acting for the Seventh District was heard November 19, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent in this matter has appealed from a Finding and Award granted to the claimant. Upon review, we conclude the respondent seeks solely to relitigate this matter after receiving an unfavorable result at the trial level. We cannot reverse such a decision by the trial commissioner and therefore, we dismiss this appeal and, with the exception of one issue regarding the imposition of sanctions, affirm the Finding and Award.

The trial commissioner reached the following findings of fact. The claimant acknowledged that he was an undocumented worker in the United States. The respondent acknowledged the claimant was an undocumented worker. The respondent paid the claimant in cash and did not withhold payroll taxes, nor did he issue the claimant a 1099 or W-2 form. The respondent also acknowledged he did not have workers’ compensation insurance. The claimant testified that he typically worked Monday through Saturday from 7:30 a.m. to 4:00 p.m. He denied concurrent employment and testified he was paid $700 per week. The claimant said he had two dependent daughters, but admitted he had never paid United States income taxes.

The claimant testified that he had started work for the respondent in 2008 and 2009 was his second year working for the respondent. The claimant and the respondent agreed that the respondent found all the jobs where the claimant performed landscaping services. The respondent negotiated the contracts with the individual home or business owners without the claimant’s participation. The claimant wore the respondent’s shirt and the respondent supplied all the tools used by the claimant. While the claimant did not have a United States driver’s license, the claimant drove the respondent’s truck to and from each job site.

On July 25, 2009 the claimant and his cousin and co-worker, Umberto Reyes, were using a 15 foot ladder that the claimant was climbing and Mr. Reyes was bracing at the ladder’s bottom. Both the claimant and Mr. Reyes testified the ladder was on uneven ground. At approximately 3:45 p.m. the ladder tipped over and the claimant fell to the ground on his back. After the claimant fell, Mr. Reyes called the respondent, who directed the men to wait at the job site. The claimant and Mr. Reyes testified it took the respondent two to two and a half hours to get to the job site. At that time the respondent directed the claimant to go home; but the claimant demanded to be brought to the hospital. The respondent finally brought the claimant to Greenwich Hospital. The claimant testified that once at Greenwich Hospital the respondent denied employing the claimant, and told the staff the claimant had been picked up in the street. The respondent did not stay with the claimant at the hospital.

Since the July 25, 2009 incident the claimant has had two surgeries for his back and has been incapacitated from work. He has also incurred large medical bills. The claimant was still out of work as of the date of the formal hearing.

The respondent offered testimony as to the claimant’s activities earlier in the day of the accident. An employee of the respondent, John Whitney, testified that at about 10:30 a.m. that day he was on the job site and observed the claimant from a distance of 25 or 35 feet. He said the claimant was drinking something from a brown paper bag. He said he did not know what beverage was in the bag and did not observe the claimant staggering or appearing to be intoxicated. Mr. Biagi himself corroborated this testimony, and added he did not smell an odor of alcohol around the claimant or observe the claimant slurring his speech. The respondent testified he did not see any alcoholic beverage in the claimant’s hand.

Based on this record, the trial commissioner concluded the claimant was an employee of the respondent and suffered compensable injuries while in his employ on July 25, 2009. The claimant’s base compensation rate was $411.50/week. The respondent was ordered to pay medical expenses and indemnity payments. The trial commissioner found the respondent’s defense “frivolous” and directed the respondent to pay a sanction of $1,000.00 to the claimant pursuant to § 31-288(b)(1) C.G.S.

Immediately after the trial commissioner issued the Finding and Award the respondent retained new counsel who filed a number of post-judgment motions. The respondent filed a Motion to Reopen Finding, a Motion to Dismiss, a Motion for Reconsideration and a Motion to Correct. The trial commissioner denied each of these motions. The respondent has pursued the instant appeal.

The crux of the respondent’s argument is notwithstanding the trial commissioner’s findings to the contrary, the claimant was intoxicated at the time of the accident. Precedent such as Fair v. People Savings Bank, 207 Conn. 535 (1988) disallows relitigation of such a factual finding, but the respondents attempt to argue that the alleged intoxication constitutes a matter of “subject matter jurisdiction” wherein the Finding and Award is now subject to being reopened. We reject this argument for two reasons. First, we find not a scintilla of legal precedent supportive of the respondent’s legal theories. Second, on a factual basis, the sole objective piece of evidence they seek to admit simply does not prove the claimant was intoxicated.

The respondent’s argument is completely dependent on a piece of evidence that was not presented at the formal hearing. The respondent argues it was “manifest error” that this evidence was not presented, although it is acknowledged the respondent was in possession of this evidence prior to the formal hearing. The document in question was a medical report generated at Greenwich Hospital after the claimant was admitted on July 25, 2009. At a time listed as “1855”1 various levels of substances were identified in the claimant’s bloodstream. Included therein was a listing for “serum ethanol” identifying a level for the claimant as “7” based on a unit measurement of “mg/dl.” The report had “H” next to the listing with a reference of “0-3 mg/dl.” Respondent’s Motion to Correct, Exhibit 3. From this single data point, the respondent claims it is incontrovertible that the claimant was legally intoxicated when he was injured three hours earlier and perjured himself at the formal hearing when he denied consuming alcohol prior to the accident. The respondent, however, offers no expert witness to substantiate this charge, leaving this panel to presume he believes this report speaks for itself.

The level of serum alcohol that the scientific community generally associates with intoxication is indicated in an article on the website of the Mayo Clinic, which states “[i]n most jurisdictions in the United States, the level of prima facie evidence of being under the influence of alcohol for purposes of driving a motor vehicle is a blood ethanol concentration 80 mg/dL”.2 We take administrative notice that 80 mg/dl is a higher blood alcohol level than the level of 7 mg/dl contained in the Greenwich Hospital report. Given that fact, we cannot find this evidence on its own constitutes proof the claimant was intoxicated in the absence of other probative evidence.

Even if this evidence were more authoritative we would deem its post-hearing admission unwarranted. As the Appellate Court held in McGuire v. McGuire, 102 Conn. App. 79, 83 (2007), “[w]e have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” The respondent was in possession of this evidence and declined to present it at the formal hearing. The respondent’s argument essentially is a bid for piecemeal litigation, which our precedent clearly states is inappropriate. See Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001) and Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005). The respondent and his counsel should have been able to properly address this issue at the time of the formal hearing, and not get a second chance after an unfavorable result was achieved. Gibson v. State/Department of Developmental Services-North Region, 5422 CRB-2-09-2 (January 13, 2010).

It is clear from the trial commissioner’s findings that the respondent did offer some other evidence which would suggest the claimant had consumed alcohol at some point prior to the accident. Findings, ¶¶ 18-22. It is also apparent the trial commissioner discounted this evidence. The trial commissioner’s denial of the Motion to Correct is further indicia that she rejected the argument that the claimant was intoxicated. 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) and Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011)(Per Curiam). On appeal, our inquiry is limited to ascertaining if this decision was arbitrary or capricious. We are not persuaded the trial commissioner erred in declining to admit and consider this evidence after the formal hearing was completed.

The respondent argues that notwithstanding the long precedent against relitigating settled cases that evidence concerning intoxication constitutes “subject matter jurisdiction” and thus may be raised at any time, citing DelToro v. Stamford, 270 Conn. 532, 543 (2004). This is a novel argument, as there is no reported case in the 98 years of workers’ compensation law in Connecticut wherein the issue of whether a worker was intoxicated was deemed a matter of subject matter jurisdiction. Moreover, as the claimant points out in his brief, the DelToro decision clearly limits its reach to issues where the General Assembly has decided not to extend the jurisdiction of our Commission to certain classes of injuries or employment relationships.

In footnote, ¶ 8 of the DelToro decision, the Supreme Court pointed out that its decision was based on the General Assembly’s legislative determination that all mental injuries unaccompanied by physical injury were no longer compensable. “It is important to note that the issue in the present case does not concern the compensability of an individual claim. Rather in the present case we are concerned with the compensability of a type of injury and whether the act authorizes the commissioner to award benefits for that type of injury in the first instance.” Id. (Emphasis in original.. The Supreme Court cited DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441 (1992) for the proposition that issues regarding the causation of an injury did not implicate subject matter jurisdiction. Del Toro, supra. The respondent is not arguing that physical injuries resulting from falling off ladders are not a type of injury within the scope of Chapter 568. Rather, he is arguing the claimant fell off the ladder and suffered physical injury because he was allegedly intoxicated. As the opinions in DelToro and DeAlmeida make clear, that constitutes an issue of causation; not subject matter jurisdiction.3 4

The leading case on reopening a workers’ compensation award due to an absence of subject matter jurisdiction is Mankus v. Robert Mankus, 4958 CRB-1-05-6 (August 22, 2006), aff’d, 107 Conn. App. 585 (2008), cert. denied, 288 Conn. 904 (2008). This case is unsupportive of the respondent’s position. In Mankus the trial commissioner opened and vacated the award when new evidence was presented that established there was no employer-employee relationship at the time of the injury. Citing Castro v. Viera, 207 Conn. 420, 426 (1988) our commission determined we lacked jurisdiction to award benefits to the claimant; a decision upheld by the Appellate Court. In the present case, the respondent can cite no precedent akin to Castro supportive of his position.

Conversely, Connecticut precedent on the issue of whether a workers’ intoxication bars an award makes clear it is the respondent’s burden to prove that the worker was intoxicated at the time of the injury and the intoxication was a substantial factor in the claimant’s injury. See Carter, Civitello, et al, Connecticut Practice Series Volume 19, Workers’ Compensation Law §7:3 (2008). As we pointed out in Jacobs v. James Dwy d/b/a New Home Exteriors et al, 5327 CRB-5-08-3 (May 28, 2009) intoxication is an affirmative defense and may not be presumed solely by asserting the presence of some level of a controlled substance or alcohol in the claimant’s bloodstream subsequent to an injury. When evidence of the claimant’s substance abuse is presented on the record that convinces the trial commissioner this behavior contributed to the claimant’s injury, the commissioner may decide to bar recovery. See Paternostro v. Arborio Corp., 56 Conn. App. 215, 217 (1999) and St. Germain v. Buckingham Restaurant & Pizza, Inc., 4343 CRB-8-01-1 (January 10, 2002). In the present case the respondent offered evidence the claimant may have consumed alcohol prior to the accident. After observing the testimony of the various witnesses, the trial commissioner discounted this evidence. We are not in a position to revisit what amounts to a credibility determination as to the witnesses on this issue. Burton v. Mottolese, 267 Conn. 1, 40 (2003).

The respondent has raised another issue where we believe relief is not warranted. In his appellate brief he argues that the amount of the sanction was in excess of the statutory amount. Evidently, he believes that the appropriate statute herein was § 31-288 (b)(2) C.G.S. However, the trial commissioner utilized § 31-288 (b)(1) C.G.S. for the sanctions which permits the amount awarded. The respondent failed to raise the statutory issue in his Motion to Correct or his Reasons for Appeal. His appeal was limited to challenging the factual basis for sanctions. Therefore, we decline to address this issue and remand this matter to the trial commissioner to specifically enumerate the facts on the record which constitute “fault or neglect” by the respondent pursuant to § 31-288 (b)(1) C.G.S.

In all other regards, the Finding and Award is affirmed and the appeal is dismissed. Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.

1 We presume this is in accord with military time, and would reflect a time of 6:55 p.m. BACK TO TEXT

2 www.mayomedicallaboratories/test-catalog/Clinical+and+Interpretive/500320, (accessed April 4, 2011). BACK TO TEXT

3 See § 31-284(a) C.G.S.“...compensation shall not be paid when the personal injury has been caused by the willful and serious misconduct of the injured employee or by his intoxication.” (Emphasis added.) BACK TO TEXT

4 The respondent’s argument that a claimant’s use of alcohol deprives this Commission of jurisdiction is unsupported by such precedent as Liptak v. State, 176 Conn. 320 (1978). In that case, decided over 30 years ago, the Supreme Court affirmed an award of workers’ compensation benefits to the decedent’s widow even though evidence on the record indicated the decedent had a blood alcohol level of 0.14 % at the time of his car crash. Id., 321. We note by way of comparison that Mr. Liptak had a serum ethanol level of approximately 140 mg/dl which was 20 times higher than the level the claimant in this case recorded hours after his accident. Therefore the precedent in Hummel v. Marten Transport, 282 Conn. 477, 501 (2007) stands for the proposition that notwithstanding the “plain meaning” argument raised by respondent as to the statute, binding Connecticut precedent has vested this Commission with jurisdiction even when a claimant’s intoxication is at issue. “There is nothing in the legislative history to suggest that the legislature also intended to overrule every other case in which our courts, prior to the passage of § 1-2z, had interpreted a statute in a manner inconsistent with the plain meaning rule. . . .” Id. BACK TO TEXT

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