Vazquez v. John Christino d/b/a Jack’s Home Improvements

The claimant was represented by James L. Rappaport, Esq., Law Office of James L. Rappaport, 733 Summer Street, Stamford, CT 06901.

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

These Petitions for Review from the August 25, 2008 Ruling on the Respondent’s Motion to Reopen Finding and the September 2, 2008 Order of the Commissioner acting for the Fourth District were heard March 27, 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 respondent-Second Injury Fund [hereafter “Fund”] appeals from the Commissioner acting for the Fourth District’s August 25, 2008 ruling denying the respondent’s Motion to Reopen Finding and the trial commissioner’s denial of the respondent’s Motion to Correct. The appeal before us flows from the August 7, 2008 Finding and Award of the Commissioner acting for the Fourth District.

While the Fund presents a number of issues for our consideration the threshold issue presented is whether the trial commissioner erred in failing to conclude that no employment relationship existed between the claimant and the uninsured respondent employer because the claimant’s status as an illegal alien barred such a contract. Specifically, the respondent argues that an illegal alien should not be permitted to recover benefits provided pursuant to the Connecticut Workers’ Compensation Act. It is the contention of the respondent that the claimant’s status as an illegal alien provides a legal impediment such that the claimant cannot enter into a legally valid employment contract.

This argument was considered and rejected by our Supreme Court in Dowling v. Slotnik, 244 Conn. 781 (1998). The Dowling court squarely considered whether an illegal alien working as a housekeeper and child care worker was permitted to pursue a claim under the Connecticut Workers’ Compensation Act. The argument, as in the instant matter, was that the claimant’s status as an illegal alien was a legal bar to a finding that a contract of employment existed between the parties and therefore the claimant did not fall within the ambit of those entitled to the remedy afforded under the Act.

The Dowling court, inter alia, referenced Kenez v. Novelty Compact Leather Co., 111 Conn. 229 (1930) where the court was asked to consider whether a contract of employment was barred by child labor laws. In Kenez the court was asked whether a child who sustained an injury while working at the respondent’s factory was precluded from recovery under the Workers’ Compensation Act as the employment contract was an “illegal” contract under the State’s labor laws. The court noted, “we believe that the extension to the child [worker] of the benefits of the [Workmen’s Compensation] Act better accords with the broad humanitarian purpose of the law, to give certain and speedy relief to those suffering injury in industry. . . .” Id., at 235-36.

We believe the Dowling opinion is controlling precedent as to this issue. Therefore, consistent with the principles of stare decisis governing our system of jurisprudence we can reach no other conclusion than the claimant’s status as an illegal alien is not a jurisdictional bar to receipt of workers’ compensation benefits. Herald Publishing Co. v. Bill, 142 Conn. 53 (1955). See also, Tufts v. Cary/New England Building, 5297 CRB-7-07-11 (November 5, 2008).

We next consider whether the trial commissioner erred in finding an employer – employee relationship existed between the claimant and the respondent employer, John Christino, d/b/a Jack’s Home Improvements, on May 8, 2006. The pertinent facts as found by the trial commissioner reflect that the respondent-employer hired the claimant to assist with the clean up of a job site in Fairfield, Connecticut. The claimant’s duties were to pick up debris and place the debris in a dumpster. The trial commissioner found, inter alia, that the claimant had worked for the respondent-employer for a period of three weeks prior to May 8, 2006. On May 8, 2006 the claimant fell from the second floor of the home at which the respondent employer was doing work. As a result of that fall, the claimant broke both legs, his right ankle and injured his left knee, right elbow and wrist. As a further consequence of the May 8, 2006 accident, the claimant incurred various medical expenses. At the time of the accident the respondent employer was not insured for his workers’ compensation liability. Therefore, pursuant to § 31-355 C.G.S., the Second Injury Fund was cited into this matter and directed to make payments to the claimant.

As we have stated previously, generally, the issue of whether there is an employer-employee relationship between the claimant and the respondent is largely a factual determination which turns on the putative employer’s “right to control” the means and methods of work. Hanson v. Transportation General, Inc., 245 Conn. 613 (1998). See also, Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003). Having already concluded that the claimant’s status as an illegal alien does not invalidate the employment contract and thereby bar the claimant’s right to pursue Chapter 568 benefits, we are left to determine whether the trial commissioner’s conclusion results from a misapplication of law, is without evidentiary support or is based on unreasonable or impermissible factual inferences.

In the instant matter the trial commissioner found that the respondent-employer hired the claimant to pick up debris. The claimant was paid $10 per hour and worked for the respondent-employer for a period of three weeks prior to the date of claimant’s injury. The respondent-employer supplied the ladder used by the claimant at the job site. The trial commissioner also found that the respondent employer controlled the claimant’s job duties and hours.

In his Finding and Award the trial commissioner included a finding in which he specifically found the claimant fully credible and the respondent-employer, Mr. Christino, not credible. See Finding, ¶¶ G and H. The ultimate conclusion reached by the trial commissioner is dependent upon the weight and credibility assigned by the trial commissioner to the testimony and evidence presented. We do not engage in de novo review. Anderton v. Waste Away Serv., 91 Conn. App. 345 (2005).

We are also not persuaded by the Fund’s argument that the trial commissioner erred in failing to grant its Motion to Correct. Our review of the motion to correct reflects the Fund’s attempt to substitute findings of fact that it believes more suitable to the arguments it advances. However, the portions of the Fund’s motion are not exactly clear as to the precise factual finding it seeks to amend or delete. As to those corrections sought which are more readily related to the trial commissioner’s factual findings, it appears that they are either immaterial or do not necessarily compel that the trial commissioner reach a conclusion favorable to the Fund.

The next issue raised by the Fund is whether the trial commissioner erred in failing to grant its Motion to Reopen. A trial commissioner’s ruling on a motion to reopen is a matter of discretion. In essence the Fund argues that the trial commissioner erred in failing to grant its motion alleging the August 7, 2008 Finding and Award of the Commissioner acting for the Fourth District and the trial commissioner’s directive to the Fund to commence payments to the claimant are unduly vague. We agree with the Fund insofar as it contends that further proceedings are necessary in order to determine the precise benefits to which the claimant is entitled and for which the Fund is liable for payment. Given this commission’s ongoing jurisdiction and the directive to the Fund that followed the August 7, 2008 Finding and Award, the trial commissioner’s decision to sever the determination of the claimant’s calculable benefits from the threshold issue of whether an employer-employee relationship existed strikes us as an appropriate allocation of judicial resources. Demarest v. Stamford, 4370 CRB-7-01-3 (March 14, 2002).

We therefore affirm the August 7, 2008 Finding and Award of the Commissioner acting for the Fourth District and his related ruling of August 25, 2008 pertaining to the Second Injury Fund.