Ojeda v. Forty-Five Pool Services

CASE NO. 5387 CRB-4-08-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 8, 2009

JOSE OJEDA

CLAIMANT-APPELLEE

v.

FORTY-FIVE POOL SERVICES

EMPLOYER

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Lawrence F. Morizio, Esq., Cousins, Desrosiers & Morizio, P.C., 2563 Main Street, Stratford, CT 06615-5844.

The respondent-employer did not submit a brief nor appear at oral argument.

The 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.

This Petition for Review from the October 2, 2008 Finding and Award of the Commissioner acting for the Fourth District was heard April 24, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This appeal is based on a single issue: did the claimant prove the existence of an employer-employee relationship at the time of his injury? The respondent Second Injury Fund (“Fund”) appeals from an award to the claimant predicated on the existence of this relationship. We find that the trial commissioner had a sufficient quantum of evidence to find the presence of an employer-employee relationship in this case. Therefore, we affirm the trial commissioner and dismiss this appeal.

The trial commissioner found the following facts. The parties were noticed to a formal hearing held February 19, 2008 to which the respondent-employer did not attend despite receipt of certified letters. The claimant testified that he began working for Forty-Five Pool Services as a technician in May of 2006. He testified that on July 29, 2006, while driving a vehicle owned by the respondent-employer, he was struck by another vehicle from behind while stopped at a red light. At the time of the accident he was driving to the warehouse to pick up supplies for his employer. The claimant said he reported the accident immediately to his employer and presented at Griffin Hospital on July 31, 2006 with complaints of pain in his lower back, both legs and left arm. The claimant said that he missed four weeks of work due to the accident and received no indemnity benefits.

Based on the evidence the trial commissioner concluded that the claimant was an employee of the respondent-employer on the date of the accident. She found the claimant’s testimony as credible and persuasive. She found the respondent-employer did not have workers’ compensation insurance in force at the time of the accident. Therefore, she determined the claimant’s injuries were within the scope of Chapter 568 and that further hearings would be required to ascertain the extent of the claimant’s injuries and his entitlement to benefits.

The respondent Fund filed a Motion to Correct which was denied in its entirety. Following the denial of that motion, the respondent pursued this appeal.

The Fund argues that the trial commissioner erred in finding an employer-employee relationship existed and further erred in not identifying the principal of Forty-Five Pool Service, Laurindo Pereira, as the claimant’s employer. We find neither argument persuasive.

We recently have outlined the required elements for establishing the existence of an employer-employee relationship in Schleidt v. Eldredge Carpentry, LLC, 5373 CRB-8-08-8 (July 14, 2009). In Schleidt we outlined the following standard, citing Maskowsky v. Fed Ex Ground, 5200 CRB-3-07-2 (July 28, 2008) and Hanson v. Transportation General, Inc., 245 Conn. 613 (1998).

Therefore, under the Hanson precedent a trial commissioner must weigh all the factors relevant to employment status prior to reaching a decision. This decision will be driven by the specific facts of each case presented. Our ability as an appellate panel to reverse such a determination on appeal is limited in scope as the inferences and conclusions reached by a trial commissioner must be accorded deference on appeal. As “[n]o reviewing court can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the [commissioner] is factually questionable.” Daubert v. Naugatuck, 267 Conn. 583, 590 (2004), citing Fair [v. People’s Savings Bank, 207 Conn. 535, 539 (1988),] supra.

Schleidt, supra.

In the present case the claimant testified that he commenced work for Forty-Five Pool Service more than a month before the accident and was on a journey benefiting his employer at the time of the accident on July 29, 2006. The trial commissioner found the claimant credible, which was within her power as the trier of fact which we cannot revisit as an appellate panel. See Burton v. Mottolese, 267 Conn. 1, 40 (2003) and Fountain v. Coca Cola Bottling Company, 5328 CRB-1-08-3 (February 18, 2009). While the burden is on the claimant to prove he was an employee, Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007), we have previously upheld awards granted on this issue which were based on the claimant’s testimony. Slater v. Broderick Macari, 4979 CRB-2-05-7 (June 27, 2006). The trial commissioner found the claimant credible and the Fund offers no cogent explanation as to why she should not have reached this conclusion.

Nonetheless, we believe we should confirm that the evidence herein, if found credible, supports a finding that the respondent exercised the “right of general control” over the claimant. Hanson, supra. The evidence supports this conclusion. The claimant testified that Mr. Pereira directed him as to what jobs he would be doing (February 19, 2008 Transcript, p. 11) and was present when he was servicing pools. Id., at 24-25. Evidence of such supervision is certainly probative in determining that an employer-employee relationship exists. Kocur v. IQ Technology, LLC, 5210 CRB-1-07-3 (March 3, 2008).

The Fund further alleges error in that it claims the actual employer was not Mr. Pereira’s firm, Forty-Five Pool Services, but Mr. Pereira himself. We find this argument as applied to a sole proprietor elevates form over substance and is akin to the legal arguments we rejected in Antos v. Jaroslaw Korwek d/b/a Jerry’s Home Improvement, 5225 CRB-7-07-5 (April 4, 2008). The record demonstrates that Mr. Pereira, who is the acknowledged principal of Forty-Five Pool Service, received proper notice of the hearing and failed to attend. Commissioner’s Exhibit 1; Transcript, pp. 2-3. The Fund’s brief cites no legal precedent wherein the trial commissioner’s decision implicates any jurisdictional or due process issues.1 The claimant testified he was paid by Mr. Pereira’s business, Forty-Five Pool Service, (Transcript, p. 22) and the trial commissioner believed him.

The Fund has challenged the factual basis of the trial commissioner’s decision. On appeal they have made what amounts to public policy arguments against this award. We, however, must defer to the factual determinations of the trial commissioner, Schleidt, supra, and have been presented with no meritorious argument that an error of law occurred in this matter. We dismiss this appeal and affirm the Finding and Award of the trial commissioner.

Commissioners Peter C. Mlynarczyk and Christine L. Engel concur in this opinion.

1 In any event, by raising this issue, the Fund is trying to vicariously assert rights vested in a third party. We have ruled against such attempts. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007, citing Strobel v. Strobel, 64 Conn. App. 614, 620 (2001). Mr. Pereira should have raised this issue at the hearing but failed to do so. To the extent “his side of the story” is not on the record, we cannot find legal error when a properly noticed party does not appear at a hearing. The record does not reflect that the Fund took any further steps, such as a subpoena, to compel his attendance or otherwise obtain his testimony and we will not revisit this issue upon appeal. BACK TO TEXT