Davis v. Edward J. Corrigan

The claimant was represented by Ralph J. Monaco, Esq., Conway & Londregan, 38 Huntington Street, P.O. Box 1351, New London, CT 06320.

The employer represented himself at the trial level, and did not appear at oral argument.

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

The Petition for Review from the March 17, 1999 Finding and Order of the Commissioner acting for the Second District was heard December 3, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer has petitioned for review from the March 17, 1999 Finding and Order of the Commissioner acting for the Second District. In that decision the trial commissioner concluded that the claimant was acting as an employee of the respondent employer rather than an independent contractor at the time of his accident, and thus was entitled to benefits under the Workers’ Compensation Act. In support of his appeal, the employer contends that the claimant was acting as an independent contractor at the time of the accident.

We will first address the claimant’s Motion to Dismiss the employer’s appeal for failure to file a brief and for filing late Reasons of Appeal. Section 31-301-2 of the Administrative Regulations states that within ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal. The employer here, who is representing himself pro se, filed a timely notice of appeal on March 26, 1999, and filed late Reasons of Appeal on October 15, 1999 which explained the grounds for his appeal.

Where a claimant is proceeding pro se on appeal, this board generally relaxes the rules of procedure in recognition of the claimant’s unfamiliarity with the law. McCarthy v. AT&T Communications, Inc., 3689 CRB-6-97-9 (August 7, 1998). Similarly, where the appellant employer here is acting pro se, and has filed Reasons of Appeal which sufficiently apprise the claimant of his basis for appealing, in our discretion we will deny the claimant’s Motion to Dismiss pursuant to Prac. Book § 85-1.

The trial commissioner found the following relevant facts. On October 16, 1997, the claimant was hired by Edward J. Corrigan (“employer”) to do repair work on a house located on South Main Street in Jewett City, Connecticut. The employer is an experienced businessman and real estate developer, who would purchase dilapidated buildings and refurbish them. He had seven employees working on this particular property which had been damaged by fire. The claimant worked for the employer from October 16, 1997 through December 18, 1997. On December 18, 1997, while working on the roof at the South Main Street property, the claimant slipped and fell thirty-five feet, sustaining severe injuries. The employer acknowledged that the claimant fell, but argued that she was an independent contractor rather than an employee.

In support of his appeal, the employer reiterates his argument that the claimant was an independent contractor rather than an employee, and thus is not covered under the Workers’ Compensation Act. It has repeatedly been held that the “determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact….” Hanson v. Transportation General, Inc., 45 Conn. App. 441, 446, (1997), aff’d., 245 Conn. 613 (1998). Moreover, “(t)he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.” Hanson, supra, 45 Conn. App. at 446, quoting Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16, 19-20, (1993), cert. denied, 227 Conn. 919 (1993); see also Murray v. Black Tie Limousine, 3899 CRB-3-98-9, (November 4, 1999), Johnson v. Braun Moving, Inc., 3861 CRB-7-98-7. (Nov. 2, 1999), and Palaez v. Richard A. Nau, 3905 CRB-7-98-9 (June 3, 1999).

When reviewing a trial commissioner’s decision, it is well established that this board “is obligated to hear the appeal on the record and not retry the facts….” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999) (quotations omitted). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted).

In the instant case, the trial commissioner’s determination that the claimant was an employee rather than an independent contractor is amply supported by the findings of fact. Specifically, the trial commissioner found that the employer set the hours of work and provided the needed tools and materials, except for a few minor hand tools; the employer instructed the claimant regarding the work to be performed on refurbishing the house, and set the priority for the work; the employer was at the accident premises on nearly a daily basis to oversee the work being performed; and the employer paid the claimant on an hourly basis and never issued a W-2 or a 1099 form.

As the findings amply support the conclusion that employer had the right to direct and control the claimant in the performance of her work, we must affirm the trial commissioner’s decision. Moreover, the employer did not file a Motion to Correct1 the findings, which prevents our review of the evidence supporting the facts found by the commissioner. Allen v. Griffin Health Services Corp., 3768 CRB-4-98-2 (April 27, 1999), citing Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). As the trier’s legal conclusions are not inconsistent with the factual findings, we must affirm the decision. Ferrara, supra.

In further support of his appeal, the employer contends that the claimant should be denied workers’ compensation because she is allegedly not a citizen of Connecticut. We need not determine whether the claimant was a resident of Connecticut, however, because the trial commissioner found that the claimant was hired to work on a project located in Connecticut, where she was injured. Thus the claimant “work[ed] for an employer pursuant to an employment contract to be performed primarily in this state.” Sec. 31-275(9)(B)(vi); see also Mitchell v. J & B Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998).

In addition, the employer argues that the claimant was a casual worker who worked on a private dwelling, and thus is not covered under the Act pursuant to Sec. 31-275(9)(B)(iv). However, the trial commissioner did not find that the claimant was a casual worker who worked on a private dwelling, but rather found that the claimant was hired by a sophisticated businessperson who was in the business of refurbishing houses. Moreover, as the trial commissioner specifically found that the claimant worked an average of thirty hours per week (Finding ¶ 17) this exemption could not apply to the claimant.

Finally, we note that the brief arguments made by the employer regarding the principal employer provision of § 31-291 are not relevant here, as the trial commissioner specifically found that the claimant was hired by the employer, not by a subcontractor.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 We note that in his Reasons of Appeal filed on October 15, 1999, the employer states that he “requests the Commission to extend the time for the Respondent to file a Motion to Correct to enable the Respondent to obtain a copy of the transcript and prepare the motion.” Pursuant to § 31-301-4, the employer was required to file his Motion to Correct within two weeks following the trial commissioner’s decision of March 17, 1999. In this case, the employer’s request for an extension of time was filed approximately seven months after the trial commissioner’s decision, and thus is untimely. The employer does not provide any reason for said lateness. Moreover, the employer addressed his request to this tribunal, rather than to the trial commissioner as is required under § 31-301-4. Furthermore, the employer did not request a transcript of the formal hearing (see Finding ¶ 2). Finally, we note that a Motion to Correct which has not been ruled upon by the trial commissioner is presumed denied for the purposes of appeal. Coley v. Camden Associates, Inc., 3432 CRB-2-96-9 (April 6, 1998), citing Spatafore v. Yale University, 14 Conn. Workers’ Comp. Rev. Op. 310, 312-13, 2011 CRB-3-94-4 (Aug. 25, 1995), affirmed, 239 Conn. 408, 417 n.9 (1996). BACK TO TEXT