Drown v. Rochette Quality Home Improvement, LLC

The respondent-employer was represented by Christopher M. Russo, Esq., Gordon, Muir & Foley, 10 Columbus Boulevard, Hartford, CT 06106.

The respondent Second Injury Fund was represented by Philip Schulz, 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 July 29, 2008 Finding and Dismissal of the Commissioner acting for the Eighth District was heard March 27, 2009 before a Compensation Review Board consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant herein appeals from a Finding and Dismissal of his claim. He claims that when he fell off a roof at a construction site on August 5, 2007 that he was working as an employee of the respondent, Rochette Quality Home Improvement. The trial commissioner concluded that the claimant was not in the course of his employment when he was injured. The gravamen of the claimant’s appeal is that the trial commissioner should have deemed his testimony and documentation sufficient to justify an award. We conclude this decision was reserved to the trier of fact; therefore we affirm the trial commissioner and dismiss this appeal.

The following facts are pertinent to our consideration. The claimant testified that he was hired by his stepbrother, Steven Rochette, (who operated Rochette Quality Home Improvement) to help renovate a barn in Glastonbury owned by Jennifer Bussa and her husband. The claimant testified he was paid $15 per hour in cash and was paid between $2,500 and $3,500 over a four month period. He did not keep formal records of his time nor did he fill out any tax forms. The claimant and his co-workers, Lucas Dove and Al Kamm, testified that the respondent provided the tools for the job and supervised their activities. The claimant testified that he went to the Glastonbury barn project at 5:30 a.m. on August 5, 2007 along with Mr. Dove and Mr. Kamm to work on the project. The claimant testified Mr. Rochette knew he was going to be working that morning; but conceded the respondent did not direct him to report for work that morning. That morning the claimant stepped onto the metal roof, his foot slid, he fell onto his backside and fell three stories to the ground, landing feet first.

The respondent testified the claimant had worked a total of 28 hours for him prior to the accident. He testified he was present 99 percent of the time work was done on the barn and he was injured in the eye on August 1, 2007 in an unrelated accident and had not left his bed until he learned of the claimant’s injury on August 5. He further testified that no one was supposed to be at the jobsite because he was out with his eye injury. The respondent did state one of the claimant’s co-workers had spoken to him to discuss working on the site that day, but he told him he did not want the claimant to work on this phase of the job due to his limited experience and that no one should have been on the residential job site at 5:30 a.m. on a Sunday.

Following the accident the claimant was driven home by his co-workers. He was later driven by his mother to the emergency room. The claimant testified he had not previously injured his back prior to the incident of August 5, 2007. He produced records indicating that he arrived at the hospital at 10:40 a.m., which he testified did not conform to his understanding of the chronology of events that day; although he suggested he may not have been on the job until 6:30 a.m. The property owner, Mrs. Jennifer Bussa, testified she was awoken at 5:30 a.m. on August 5, 2007 by a vehicle entering her property. She had not been notified that anyone would be working at this time of the morning. She had believed the respondent was covered by insurance for his workers, but was advised the respondent lacked workers’ compensation insurance when the claimant’s mother approached her after the accident, seeking to have Mrs. Bussa’s insurance cover the claimant’s medical bills.

Based on this testimony the trial commissioner concluded that the claimant was employed by the respondent, but at the time of the accident the claimant was working on the jobsite without permission. The trial commissioner found the respondent credible on the issue of whether the claimant had permission to work at this time. The trial commissioner also found Mrs. Bussa credible, and found the claimant and his corroborating witnesses were not credible and persuasive. As the claimant’s injury was not sustained out of or in the course of employment, the claim was dismissed.

The claimant was represented by counsel at the formal hearing, but he is now proceeding pro se. He did not file a Motion to Correct the Finding and Dismissal. While he filed a timely Petition for Review, no further pleadings or briefs were filed by the appellant. The respondent Second Injury Fund therefore moves to have the appeal dismissed pursuant to Practice Book § 85-1. We find this argument meritorious.

We find the present circumstance similar to that we considered in Bernier v. American Ref-Fuel Company of Southeast Connecticut, 4876 CRB-2-04-10 (December 23, 2005), where we dismissed a claim for failure to prosecute, except that the claimant in the present appeal did attend the hearing before this panel and presented oral argument. Similar to Bernier, we find that were we to consider this matter on the merits, we would affirm the trial commissioner’s decision.

We first note in the absence of a Motion to Correct “we must accept the validity of the facts found by the trial commissioner, and that this board is limited to reviewing how the commissioner applied the law.” Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (2008). The trial commissioner specifically cited Edwards v. Talmadge Park, Inc., 4924 CRB-3-05-2 (February 15, 2006) as legally controlling over the facts of this case. We agree.

In Edwards, supra, the claimant went to her place of employment and was advised there was no work for her that day. Prior to leaving the premises she was injured in a fall down accident. Since the claimant was not performing any work for the respondent at the time of her injury, and had not been directed to report to the workplace, “we must agree that the claimant was not within the period of her employment at the time of her alleged compensable injury.” Id. Since the trial commissioner in the present case credited the respondent’s testimony that he did not want the claimant working on the Bussa barn at the time of the accident, this case is legally indistinguishable from Edwards.

We also reached a similar result in Mleczko v. Haynes Construction Company, 5109 CRB-7-06-7 (July 17, 2007), aff’d., 111 Conn. App. 744 (2008) where the trial commissioner concluded that the claimant’s injuries occurred at a time after he had completed his work duties for the day. Since the claimant’s injuries in Mlezcko were judged noncompensable, we must reach the same conclusion in this case.

At oral argument before this panel the claimant argued a number of points. He argued his prior attorney failed to present probative evidence at the formal hearing. Since a Motion to Submit Additional Evidence pursuant to Admin. Reg. § 31-301-9 was never filed we cannot consider this argument. He also does not understand why the absence of documentation as to his schedule was relevant. In Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007) we pointed out in the absence of such documentation a claimant’s case is wholly dependent on the credibility of the claimant’s testimony. In the present case, the trial commissioner found the claimant was not credible. For the reasons stated in Burton v. Mottolese, 267 Conn. 1, 40 (2003), we cannot revisit this determination. See also Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006); Smith v. Salamander Designs, LTD, 5205 CRB-1-07-3 (March 13, 2008) and Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB 6-07-7 (July 22, 2008).

We conclude the trial commissioner’s determination that Mr. Drown was not within the scope of his employment by the respondent at the time of his injury was a reasonable determination based on the record. 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.” We affirm the Finding and Dismissal and dismiss this appeal.